Forcing ‘search neutrality’ on Google

Forcing ‘search neutrality’ on Google

George Nathanael is a JD candidate at Osgoode Hall Law School.

It’s the beginning of a new decade, and of course, the last one has seen the internet experience tremendous growth and change. Perhaps no other company has enjoyed the boom as much as Google. Just over 10 years ago, the then corporation of 8 employees had only recently moved out of its garage. Today, it rakes in revenues of over $20 billion a year, has a growing number of applications that are enjoyed by millions of users across the globe, and is still widely recognized as the world’s most popular search engine. With its expanding power and success, however, Google has received quite a bit of ethics-based criticism on a variety of fronts despite its “don’t be evil” motto.

A recent op-ed in the New York Times written by Adam Raff, the co-founder of a competing internet search website, argues that Google has unfairly been stifling legitimate competition through the editorialization of its search results. Raff claims that his site, Foundem, had suffered penalties that resulted in artificially being placed lower in Google’s search result rankings (artificial in the sense that they are outside of the scope of the normal algorithms used for determining search result rankings) simply by virtue of being a vertical search service. He thus pushes for regulations that promote “search neutrality”, a concept somewhat analogous to network neutrality, which Google supports. (If you do not know where to look for background information about net neutrality, see the following:

Foundem has created a website that seemingly has as its purposes to share Foundem’s story, promote search neutrality, and attack Google. On this site, it is stated:

Search Neutrality can be defined as the principle that search engines should be open and transparent about their editorial policies, or, better still, should have no editorial policies other than that their results be comprehensive, impartial, and based solely on relevance.

The definition provided seems sensible, however, as Rob Heverley points out, “search engines cannot be neutral because the nature of search engines is to discriminate”. Therefore, the terms used may not be quite apt, and may even be a bit of a ploy to ride on the coattails of the net neutrality movement. Nonetheless, the underlying argument is an interesting one.

I think that it is safe to say that most users of Google’s search engine expect that the results delivered will be based solely on relevance and will not be influenced by the search’s potential consequences, either directly or indirectly, to Google’s own business interests. According to Raff, this expectation is not met; to legally force that this imposition be met would no doubt be beneficial for consumers, but it would obviously infringe on Google’s ability to provide its service the way it wants. But as Frank Reed asks, “[w]hy should anyone in the free market be obligated to being relegated to a ‘public service’ status just because they do something better than most?” Though arguing that this would essentially be a relegation to public service status may be a bit of an overstatement, the implementation of regulations enforcing search neutrality would no doubt have many free market proponents up in arms. However, there are many occasions when businesses are limited in their actions and have onerous obligations to meet, so the question that needs to be asked is under what circumstances are such regulations appropriate? Generally, it can be argued that regulations are used to prevent unfair harm.

Google states that its mission is “to organize the world's information and make it universally accessible and useful”. In consideration of the exponential growth of the amount of information on the internet, the job has become a lot bigger and much more important to users who need to sort through an excess of information. Google does this job quite well and many consumers and businesses have become somewhat dependent on its doing a good job.  If a company is ranked much lower on a search result than it otherwise ought to be, this can be viewed as a harm to that company. However, it must not be forgotten that in absolute terms Google is giving that same company a benefit by including their listing on its services in the first place; it is only severely limiting this benefit by ranking the company much lower. Thus, this relative harm is not unfair because the benefit of being placed within the search results is not owed in the first place.

As was mentioned, the analogy to net neutrality is not exact, but there are similarities. Frank Pasquale argues that “[d]ominant search engines and carriers are the critical infrastructure for contemporary culture and politics”.  Internet service providers (ISPs) can be said to be providing a benefit to consumers and businesses by allowing access to information found on websites. So why would it then be fair to prevent ISPs from controlling traffic in ways that favour access to some sites and not others? The potential imposition of net neutrality laws on ISPs can be justified by the policy rationale that in today’s world access to the internet (both by consumers and in order to reach consumers) is of sufficient importance to override the typical freedom of a company to shape its business as they see fit. In my opinion, the ability to promote certain information on the internet and have it found more easily is simply not at the same level of importance and necessity as the ability to have that information accessed.

Just as with any large company, Google’s growing power and reach will lead to greater expectations from those who have a stake in the way it carries out its business. There will always be critics of some of its practices, and these critics will raise good points. But when it comes down to it, it should take a lot to force a company to shape its services so as to act for the benefit of other parties. We can only hope that Google’s sense of corporate social responsibility will act as a restraint on its own interests, and that it considers its role in shaping search services for the benefit of all, just as other internet technology companies ought to as well.