It is hard to be sure about who is doing the spinning on the Google search proposals that are being ‘market tested’ while EU Commissioner Almunia considers whether the proposals are a sufficient basis for a settlement. Since I am not even sure who is doing the spinning, my chances of determining which way the ball will spin when it eventually lands are slim – it makes reading a Shane Warne delivery look like child’s play. The carefully orchestrated leaks of the proposals certainly created an expectation of acceptance but it may turn out to be a googly after all.
Nor am I sure about Mr Alumnia’s goolies or, to use a more acceptable term (because it is foreign) and one with which he is likely to familiar, his {i}cojones{/i}. The difficulties the EU faces in any dispute with a big foreign corporation are multiplied when that corporation is Google. Microsoft was enormous but it was never a {i}verb{/}! The prospect of Google throwing a fit and blocking EU users from its search engine is a pretty unlikely one but it is not absolutely ridiculous and, more relevantly, Google is a vital ally in many spheres and has an awesome lobbying machine. All-in-all, it will take a lot of guts to chuck their proffered settlement back at them and tell them to do something much more radical.
My immediate reaction to the Google proposals is that they do not really alter the game and that Google’s dominance will not be threatened in any way. The likely effect is that Google’s code writers will be busy and that those wishing to exploit Google’s dominance will have to jump through extra hoops (and pay more?). If Google ‘cheat’ on search, and the US investigation suggested that they don’t, it will always be hard to catch them and require massive commitment and resources. Will the EU Commission want to commit?
The connection has been made by many between this proposed settlement and the on-going privacy policy enforcement issues that have so stirred the Article 29 Working Party. I confess that I think that the competition case was a lot stronger than the privacy policy case so it may be that Google will be emboldened if its proposals for settlement on search are deemed acceptable. It is dealing with two different arms of the EU but Google’s top management may well see a generic weakness. They may expect a sop to privacy to be enough for the enforcement action by Article 29 bodies to fold.
