Every Click You Make: Article 6(5)’s Search for a Limiting Principle
When does a “directions” button become a competition-law violation? When it points to Google Maps, according to the European Commission. A law meant to police search rankings is becoming a license to police the whole page.
On July 23, the Commission fined Alphabet €460 million for favoring nine of its own services on Google’s search results page: comparison shopping, flights, trains, hotels, local places, Google Maps, a translation box, sports scores, and even the games that appear when you search for “solitaire.”
The Commission’s cease-and-desist order requires Google to stop “displaying interactive pointers to its own distinct or additional services on the [Google Search Engine Results Page (SERP)], such as in tabs or in links to these services when a user clicks on a reservations, directions or any other button” (paragraph 712(c)).
That raises a basic question about the reach of the European Union’s Digital Markets Act (DMA). Article 6(5) prohibits designated “gatekeepers”—large platforms subject to the law—from giving their own services preferential treatment in “ranking or related indexing and crawling.” These processes determine the order of search results and collect and organize the information behind them.
But the Commission’s order also restricts where Google places links and buttons for its own services on the page—even when those features don’t appear to rank search results.
Does “ranking” now cover anything that appears on the screen? If so, gatekeepers could be barred from featuring any of their own products or services in drop-down menus on their own websites. We argue that this stretches the DMA’s definitions of “ranking” and “search results” too far, with no clear limiting principle.