February 14, 2014, 12:29 PM — Google has done what the European Commission declined to do: publish the details of the latest commitments Google made in a bid to settle a long-running antitrust case involving its treatment of rival specialist search services, among other matters.
Last week, Joaquín Almunia, European Commissioner for Competition, announced that he was inclined to accept Google's commitments and outlined their main features, including a promise to give comparable prominence to specialized search services that rival its own. If the Commission formally accepts Google's proposals, it will bring to an end an investigation begun in November 2010 after competitors complained the company was reducing the visibility in search results of websites and services that competed with its own.
In presenting the broad outlines of Google's commitments on Feb. 5, Almunia said he would not conduct a full "market test" which would have involved circulating it to around 125 interested parties and inviting them to submit comments, but would instead send the details only to the complainants.
That angered some parties, including lobby groups Fairsearch and ICOMP, who wondered why there would be no market test. They also called for publication of the commitments, but Almunia declined, saying that the Commission would only publish them in full once it formally accepted them and that until then it was up to Google to decide whether to publish.
Around noon Brussels time on Friday, Commission spokesman Antoine Colombani took to Twitter to defend the Commission's decision only to share details of the commitments with companies that had filed formal complaints. Asked "Why the reticence about sharing?" he replied: "What reticence? We have presented publicly their key features and will now share them with complainants."
Four hours later, Google's senior vice president and general counsel, Kent Walker, ended the wait. On the company's European policy blog he announced the publication of what he called the "full text" of the company's commitments.
In fact, the 93-page document contains a number of redactions, including details of a parameter used to rank search results, the identities of two companies with customized contracts for Adsense For Search, and a proposal for modification of those contracts to comply with the other commitments.
In the document Google undertakes to make changes from the day the Commission makes the commitments legally binding on the company, or in some cases within three months of that date, and to commit to those changes for a period of five years and three months from that date.
With the approval of the Commission, it will appoint one or more persons to act as a monitoring trustee, ensuring Google's compliance with the commitments. The trustee will be paid by Google. Such positions can cause conflict: Apple is in dispute with the U.S. Department of Justice over the role of a monitoring trustee appointed in an antitrust case involving ebook pricing.
Just 21 pages of the document are commitments: Nine of them concern search ranking, with the role of the monitoring trustee taking up seven -- and another six in an annex. Another annex explains how Google ranks search results, while a third devotes 50 pages to screen-shots of how Google proposes to display search results for services that rival its own.
This is not the first time Google's proposals to settle the antitrust investigation have been published unexpectedly. A previous draft of its commitments was leaked to the press, prompting a witch-hunt to identify which of the participants in the market test was responsible for the leak.
ICOMP's legal counsel welcomed Google's decision to publish, and called on the Commission to broaden consultation on them: "This is an important and necessary step that allows third parties and consumer organisations to see the revised package. Google's behavior affects the whole online ecosystem and consumers in particular, so it is vital that all interested parties have the opportunity to review these proposals. It is even more important that the Commission listens to and takes into account their comments and analysis," wrote David Wood in a blog post.
Ben Hammer of lobby group FairSearch echoed this. "We welcome Google's unilateral decision to publish a non-confidential version of its commitments, but will continue to stress the importance of market testing to demonstrate the effectiveness of these commitments to restore competition to search;" he wrote in an email.
Publication of the commitments is likely to do little more than satisfy people's curiosity this time, however. That's because Almunia has indicated that even the complainants who have already received the document are unlikely to dissuade him from formally accepting Google's commitments. While promising at the Feb. 5 news conference to analyze the complainants' responses, he said: "I don't see that I will change my mind on the proposals."
Contacted via email, Colombani said he welcomed Google's publication of the detailed text of its commitment proposals, and reiterated the Commission's plans to invite only the complainants to comment on them.
Peter Sayer covers open source software, European intellectual property legislation and general technology breaking news for IDG News Service. Send comments and news tips to Peter at firstname.lastname@example.org.