[Neha Maria Antony is a 4th year law student at the National University of Advanced Legal Studies]
Competition authorities across the world have a chequered history with tech giant Google. India’s competition regulator, the Competition Commission of India (‘CCI’) has also been part of this saga, and the latest in a series of competition concerns against Google arose in the form of the decision in Digital News Publishers Association v. Alphabet Inc. (‘DNPA’). The allegations raised in DNPA include, inter alia, that Google has abused its dominant position in the relevant markets by imposing unfair conditions on digital news publishers for displaying their links on Google’s search results. This leads to depriving the news publishers of the fair value of their content. Using its dominance in one market to enter another was alleged to be a violation of section 4(2)(e) of the Competition Act.
Zero Click Searches and Information ‘Snippets’
The allegation of violation of section 4(2)(e) also takes note of zero-click searches. A search on Google will deliver innumerable results in a matter of seconds, whereby Google now provides a short excerpt of the relevant results. Often called zero-click searches, these searches resolve the search query on the results page without having to go to another website. The website in question, from where the ‘snippet’ might be sourced, loses out on advertising revenue because the user no longer visits its website, instead resulting in a gain for Google.
Zero-click searches gained prominence owing to statistical data, which highlighted their meteoric increase in the search results game. Data from 2019 revealed that a majority of all searches on Google, amounting to nearly 50.33%, were zero-click searches. It was found that in 2020, two-thirds of Google searches were zero-click searches. This increased leaning towards zero-click searches indicates changing trends in online searches necessitating a deep dive into the benefits and disadvantages this phenomenon carries with it.
The Pros and Cons – Consumers Benefited, Websites Disadvantaged?
Zero-click searches offer an interesting interface of innovation, consumer benefits, and competition concerns. Google has constantly been at the forefront of search-engine innovation, the most notable being autocomplete and predictive search. Taken at face value, these innovations have enhanced the user experience and, even in the case of zero-click searches, the users can now see relevant portions of the search results, saving them the time and effort needed to individually open each search result and see if it is appropriate to their query. Google also tailors the excerpts to deliver only the most relevant parts of the search result, like highlighting a particular sentence in a 100-page document that might otherwise be difficult to locate. Purely from a consumer perspective, zero-click searches are making users’ lives easier and delivering information faster and more accurately.
On the other hand, however, there is an evident loss for the websites from which the snippets are sourced. Besides the advertising revenue obtained when the user visits a website, there are also related acts like subscribing to a newsletter, clicking additional links within the website, and so on, which are ruled out because the consumer never visits the website.
Google contested these findings and stated that traffic to websites increased despite the claims related to zero-click searches. Google claimed that there were several instances that appeared to be zero-click searches but were not. For instance, certain snippets might help the user reformulate their queries and arrive at the website most suited to their needs or help a user get information related to business hours or location, ultimately directing the user to the actual establishment.
Zero-click searches are infinitely useful for getting quick answers. Where a user needs to get more than a simple answer, they will no doubt visit the website for a more thorough look. It can also be argued that from the perspective of the websites, the zero-click searches might improve competition through parameters such as the quality of the content generated. This is linked to the ‘Position Zero’ attribute on the search results page, which is the most prominent snippet displayed. Websites can potentially compete for this position, which will, in the larger scheme of things, allow them to gain more traffic.
Competition Law Concerns and Potential Answers
Zero-click searches seem to offer a clear case of consumer benefits, while certain disadvantages are experienced by the websites concerned. However, from the perspective of competition law, there is a larger gamut of issues to be considered, which will ultimately aid in determining whether there has been an abuse of dominance by Google as claimed in the DNPA case.
Abuse of Dominance – Self Preferencing and Entry into New Markets
While it increases the efficiency of the search engine, Zero-click searches or any such innovation can be seen to have a direct impact on competition. Google is clearly dominant in the relevant market for online search services, and zero-click searches, among others, allow for Google to ensure that the consumer stays on Google and eliminates the need to visit another player or use their services. This should also be seen in the larger operative framework that Google allows. A user in the 21st century can find a Google or Google-owned service in several aspects of digital life from news to images, email communications, video conferencing, shopping, and a wide array of convenient, free services. By linking its various services together, Google creates an interesting cage for the user, which effectively precludes other players.
For instance, in the DNPA case, it was evident how Google used its position as a dominant search engine to segue into the online news market by bringing in Google News, Google News Showcase, and the like. As alleged, this would constitute a violation of section 4(2)(e) of the Act whereby Google uses its dominant position in one market to enter into or protect another market. Much like what was concluded in the Google Shopping case in the European Union, there is scope here for establishing abuse of dominance where Google is pushing its own services and distorting competition in the market for online advertising.
DNPA is also a relevant interface for analyzing what the impact on digital advertising would be in terms of the competition therein. Companies spend enormously on advertising, and digital advertising is quickly becoming a considerable force. Google derives nearly 80% of its revenue from advertising and is, therefore, incentivized to reduce opportunities for other websites to compete with it in terms of digital advertising. Many news publishers have an online presence today, and print readership has been falling consistently. In this backdrop, regulating Google’s activities assumes importance simply because inaction would lead to these news websites being driven out of the market as both news providers and advertisers. Advertising supports the news publishing industry, and allowing the practices alleged in DNPA to continue will leave Google as the only market player, which, needless to say, is a threat of extreme potency.
IPR Violations
An interesting parallel may be drawn between the allegations in DNPA and those raised by Getty Images in 2016. Getty alleged that the ‘View Image’ function in Google Images allowed for users to view and download the concerned image without having to visit the website from which the image was sourced. Similar to zero-click searches, this resulted in a loss to Getty and other such websites. Though Getty’s qualms were subject to settlement, Google did end up removing the ‘View Image’ function. An additional angle in Getty that does not seem evident in the DNPA case was the allegation of violation of intellectual property rights (IPR). Zero-click searches capitalize on the usually copyrighted material of other entities and can effectively constitute a violation of the IPR of the concerned websites. DNPA did allege that the news websites were not given the fair value of their content and did not fairly compensate for the use of the content provided within the snippets.
Growing Concerns and Consumer Harm
Ultimately, Google, or Google’s algorithms, determine which search results need to be highlighted in the snippets or which ones should show up on the first page of results. With the kind of market power that Google has, there is every possibility that Google can dictate what the consumer sees. This is important because there has been a growing consciousness that large corporates are now able to, and are, intervening and influencing democratic processes like elections and influencing public opinion. This aligns with the New Brandeis Movement, which warns against the concentration of power in the hands of corporates which could undermine democracy.
Further, it can be argued that there the purported consumer benefits can be outweighed by the long-term harm caused to the consumers. Google’s strategies of self-preferencing, especially if reflected in the space of news publishing, can diminish incentives of such news websites to provide quality content that captures the dynamics of a particular issue. News and media are critical to a person’s perception of the world around them and their participation in the process of governance. By a surface analysis of the zero-click searches, consumers will only get to see a fragment of a larger piece which, after going through the filters of search engine optimization, provides them with a less than optimum answer.
Conclusion
The approach taken by competition authorities, including the CCI, will be critical not just to answer the present questions but also to consider future challenges that may arise. For instance, looming on the horizon are questions pertaining to the results delivered by virtual assistant technologies like Amazon’s Alexa or Apple’s Siri, which collate and deliver audio snippets, much like zero-click searches.
The DNPA case, which prompted this discussion in the Indian context, found the CCI taking the prima facie view that Google had violated section 4 of the Act and directed an investigation into the matter. While zero-click searches are but a passing argument raised, it is believed that the decision of the CCI has to be made with utmost care, as it offers a unique recipe of consumer benefit, innovation, and the need to address competition concerns. It is also notable that there are going to be many more such cases against the innovations Google brings about, and the potential decision in DNPA could serve as the signboard for the competition concerns that will inevitably arise in the future.
– Neha Maria Antony
