Lisa Mays
83 Geo. Wash. L. Rev. 721
Google’s monopoly over Internet search is a serious issue. Tech policy
experts describe the Internet as today’s equivalent of electricity. Consumers
rely on the Internet for social communication, education, work, entertainment,
and news. Thus, as consumers deserve fair access to electricity, they should be
able to access information available on the Internet. However, search engines
essentially control consumers’ access to online information, and some search
engines, like Google, deny access to the useful information that consumers
seek. This behavior is called search bias and is a violation of search neutrality.
For example, Google threatened to delist Yelp unless it allowed Google to
copy Yelp user reviews of locations on to Google Plus. Google is able to act
in this predatory manner because it has a monopoly over Internet search. Despite
this predatory behavior that harms consumers, the antitrust enforcement
agencies of the United States and the European Union have failed to effectively
intervene.
This Note advocates that the essential facilities doctrine is a practical solution
to the Google problem. The essential facilities doctrine mandates that
when a monopolist holds exclusive control over a facility or resource, access
must be shared as long as allowing access is practical. For example, railroad
companies have been ordered to share access to railroad tracks, and telecommunication
companies have been ordered to share access to cable networks.
Search engines have reached the level of an essential facility because they provide
access to the Internet, and Google, with its monopoly over Internet
search, is effectively the one essential facility in control of access to the Internet.
Google is able to easily share access with other search engines, but
instead chooses to use predatory behavior to promote its own products and
demote competitors’ products in ways that violate antitrust law. Therefore,
Google must be ordered, under the essential facilities doctrine, to share access
to its resource by fairly allowing websites to be ranked by Google’s search
engine according to merit and not by whether they compete with Google. This
will allow consumers access to online information and will prevent Google
from harming competition.
