In the series “algorithm regulation”, we discuss the implications of the growing importance of technological algorithms as a means of regulation in the digital realm. 

fair-search-europe-logoA common complaint of Google’s competitors in fields such as Internet maps is that Google’s search algorithm favors its own services over those of competitors in its search results. For instance, the FairSearch coalition led by Microsoft, Oracle and others calls for more transparency in displaying search results and harshly criticizes Google:

Based on growing evidence that Google is abusing its search monopoly to thwart competition, we believe policymakers must act now to protect competition, transparency and innovation in online search.

Given Google’s market dominance in Europe with over 90 percent in core markets such as Germany, such allegedly discriminatory practices led to an antitrust investigation by the European Commission (EC). However, providing reproducable evidence for such discriminatory search results is difficult. Google is not only constantly changing its search algorithm (see “Algorithm Regulation #4: Algorithm as a Practice“) but also increasingly personalizing search results; both these characteristics of contemporary search algorithms make it difficult to compare search results over time.

But even if claims of discriminatory practices were sufficiently substantiated, this would pose the question of how to address this problem aside from fines? Would it be possible to directly regulate algorithms or algorithmic practices? And how could compliance with such regulation be monitored given the lack of algorithm transparency?

In a recent package of concessions offered to the Commission, Google still refuses to change transparency of its back-end algorithm (see “Felix Stalder on the Front und Back of the Social Web“) but promises more transparency on its front-end. According to a Guardian report by Charles Arthur, Google offers “to label results where its own properties, such as YouTube or Google Shopping, appear in listings when people perform searches”. According to Arthur,

the move is unlikely to pacify companies that originally complained to the EC. They have complained that Google artificially boosts its own properties and penalises rivals.

I can understand that competitors are not content with more front-end transparency in a case that has its roots in a lack of back-end transparency. Generally speaking, I would plead for more creative forms of antitrust regulation with measures other than fines or company break-ups. In the Microsoft antitrust case, for example, open source mandates would have been much better a tool to reinstate competition than mere billion dollar fines. And in the case of Google, regulation such as compulsory algorithm licensing may be an option. Because the more important algorithm regulation becomes, the more important regulating algorithms becomes, as well.