The case could set a lasting precedent for digital markets competition as the DOJ now looks ahead to further courtroom battles with big tech
DOJ claims Google leveraged search engine agreements to limit competition
On 16 November 2023, the US Department of Justice (DOJ) wrapped up the evidence portion of its monopoly case against Google. The month-long trial brought a number of newsworthy revelations during what was billed as the most important monopoly case since the DOJ sued Microsoft in 1998. Key to the DOJ’s case was the decision by Judge Amit Mehta to publicly release a selection of previously sealed evidence through what was an otherwise uniquely closed proceeding. According to evidence that included data from 2021, Google paid $26.3bn (£21bn) to companies like Apple, Verizon, Samsung and Mozilla to serve as the default search engine in various web browsers and mobile browser applications. We learnt that Google paid around $18bn (£14.4bn) of that sum to Apple alone in order to be the default search engine for the Safari browser. Witnesses from Google also let slip the interdependence of its search business with digital advertising, allowing the DOJ to bring into question the possibility that the platform was degrading search quality in order to serve more ads on subsequent searches. In perhaps the most ironic admission, evidence from 2005 exchanges between Google and Microsoft executives detailed how Google had threatened to sue Microsoft if it made its own Bing search the default engine for its Internet Explorer browser.
Google touts its superior product quality in defending default agreements
In mounting its defence, Google championed the quality of its search product, including through the testimony of competitors. Executives from both Microsoft and DuckDuckGo (another browser) admitted to investing less in improving their search products. Similarly, executives from Apple, Mozilla and Motorola all testified that their choices to make Google the default engine on their respective browsers was due to the fact Google offered the best search experience for their customers. Most importantly, Google repeatedly highlighted the ability of users to reset the default engines on browsers, as well as evidence that users circumnavigated other default engines to return to Google search. Both Mozilla and Microsoft executives admitted to the relatively small search query shares of Bing and Yahoo! even when they were made defaults on Edge and Firefox, respectively. According to Google, that demonstrates that default settings proved no obstacle to consumers as they frequently sought out a superior search experience via Google on these browsers. Google’s defence rested on the notion that their scale of search has created a better product and more innovative market in search as opposed to locked out competition from smaller engines.
The DOJ’s decision is expected to set a lasting precedent for digital markets competition in the US
A decision in the case is not expected until early 2024 at the earliest and will possibly be appealed to the Supreme Court that has consistently sided with defendants in antitrust cases in recent history. In the interim, the US Government will move ahead with antitrust proceedings against Meta and Amazon, while Google faces two further monopoly suits over its App Store and digital advertising businesses. Should Judge Mehta find in favour of the DOJ, the trial will then proceed to a remedy phase. Some speculated remedies, such as outlawing default search engine agreements, bring concerns about increasing the cost of mobile devices given the now known sum that Google pays to Apple and Samsung. Regardless of any finding, however, the trial is expected to set a lasting precedent for digital markets competition as US regulators look to revamp the entire philosophy of antitrust policy in the digital age.
