Google Conceding Unlawful Behavior in European Probe?

The Financial Times reports that online behemoth Google has offered a pre-emptive deal to settle anticipated European Union claims of unlawful behavior damaging to competition in the online search and services market:

“Google has made a bid to avoid an antitrust war with Brussels by offering to label information from its in-house services that are included in its search results pages, according to people familiar with the search giant’s submission.

Under the proposal, Google would put its brand on any of its own maps, stock quotes, airline flight details or other pieces of information returned with search results.”

The offer to label is apparently directed at eliminating concerns that Google is abusing its monopoly in the search market to squeeze out smaller providers of specialist information, whose services Google-owned entities are attempting to replicate. In Europe, about 95 percent of online searches are performed using Google.

Some observers view the move as a tacit admission by the online search giant that its behavior to date has been unlawful, though Google is neither admitting nor denying anything untoward, telling the FT only that “We continue to work cooperatively with the European Commission.”

Google may also be facing a similar probe in the US, which could divide conservatives.

On the one hand, Sen. Rand Paul (R-Ky.) has indicated concern about overreach with regard to anti-trust action focused on Google by the federal government.

On the other, Justice Scalia’s dissent in the Eastman Kodak v. Image Technical Services case is seen by conservative critics of Google as an indicator that by the Justice’s standard, Google could well be engaging in unlawful behavior.

In his dissent in that case, Scalia commented that, “Where a defendant maintains substantial market power, his activities are examined through a special lens: Behavior that might otherwise not be of concern to the antitrust laws – or that might even be viewed as procompetitive – can take on exclusionary connotations when practiced by a monopolist.”

On PCs n the US, about 70 percent of searches are done through Google; on smartphones and similar devices, that percentage can rise to 95 percent. The Supreme Court standard for a monopoly is control of two-thirds of a market or more, so Google appears on that basis to qualify.

Sen. Mike Lee (R-Utah) called for an antitrust probe into Google last year, with some observers speculating that his concerns might be shared by Ted Cruz, who has represented the Federal Trade Commission (FTC) in antitrust matters and worked at the FTC under the Bush administration.

Cruz, a Tea Party favorite, is expected to win the Texas Senate race to replace Kay Bailey Hutchison next month.

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