Searching Google

December 2, 2010

I am not qualified to say anything of note about the EU Commission’s inquiry into allegations that Google has abused its dominant market position (but we have got an article lined up on this); I am going to stick to something basic. My grasp of the competition law issues is in any case handicapped by my reaction to any mention of ‘antitrust’ – which it is difficult to avoid in this context. It may be a perfectly acceptable piece of international English but, whereas many react as I do when people replace references to autumn with ‘fall’ (ie ‘bloody Americans coming here and taking over our language’), my reaction to ‘antitrust’ is clouded by the fact that Auntie Faith was my grandmother’s sister and a vague feeling that this must be another ancient relative.

The sheer scale of the undertaking that the EU is contemplating is breath-taking. In order to sniff out abuse by Google, a gigantic amount of data will have to be examined. We are talking about a major commercial lever in a massively expanding e-commerce market. The costs involved in the investigation, which you and I are funding, are going to be astronomical – quite a few tuition fees even at projected levels. Even assuming, and it is a big assumption, that the Commission decides to focus on strictly defined sample areas and gets every possible drop of the co-operation promised by Google when the investigation was announced, the amount of data that needs to be captured is huge. We have heard about large-scale group actions in the USA that have required massive e-discovery (the Viacom YouTube litigation comes to mind) but I don’t think we have seen anything on this side of the Atlantic on this scale.

Of course, there is one outstanding expert in searching through enormous masses of information and finding the kernel of knowledge that you really want. But something tells me that co-operation will only go so far.

I have a vision of somebody in Brussels celebrating the decision to pursue the inquiry only to realise that now he or she actually has to do it now. It’s like applying to do the London Marathon and the so-and-sos accepting the application – those old trainers really are not going to cut it. I also have a vision of major e-disclosure companies honing their products, their language skills and their lunching budgets for this very moment. I wonder if any SCL members are prepared to offer any tips as to how the Commission might go about their job.

I do have a tip for the Commission investigation: don’t bother. It may be a massive challenge but, in this fast-changing e-commerce world, so much will have changed by the time you complete the investigation that your conclusions will be of largely academic interest. It is by no means a universal truth in my book, but this is one area where the better mechanism is the market – Google is on the edge of overdoing things at the moment and, for the first time in years, I have heard rumblings of discontent that come from beyond the nerdish fringe. If Google does not watch its step it will be genuinely threatened. I doubt that it is daft enough to allow that to happen but that threat is a better protection than an EU Commission investigation into historic and mountainous data.