On March 20, 2019, the Commission fined Google €1.49 billion for breaching Article 102 TFEU by imposing restrictive clauses in contracts with owners of third-party publisher websites, such as newspapers, blogs, or travel site aggregators.
These publishers use Google’s search engine to provide search functionality on their website. In that case, to monetize the website, publishers will use allocated space to show Google ads alongside search results. Through AdSense for Search (“AFS”), Google’s online search advertising intermediation platform, Google acts as intermediary between advertisers and website owners, and provides targeted search ads to website owners. Revenues generated from clicks on such ads are then shared between Google and the website owner.
The Commission concluded that Google abused its dominance in the market for online search advertising intermediation by including in the contracts; (i) exclusivity clauses which hindered publisher websites from showing competing search adverts, (ii) “premium placement” clauses, which prevented website owners from placing competing search adverts in their websites’ most visible and profitable space, and required a minimum number of Google ads to be shown, and (iii) clauses subjecting website owners’ right to modify the design of search adverts to Google’s prior written approval. According to the decision, this prevented Google’s online search rivals, such as Microsoft and Yahoo, from growing and offering alternative online search advertising intermediation services. Upon receipt in July 2016 of the Commission’s Statement of Objections, Google ceased the contested practices.
This decision follows the Shopping decision in 2017 and the Android decision in 2018. It is yet another example of the Commission’s close scrutiny of online platforms and, more broadly, the digital economy. National competition authorities are also looking into digital platforms and online advertising. On January 31, 2019, the French Competition Authority issued interim measures against Google in proceedings related to its online advertising service. On March 6, 2018, following a sector-investigation, the French Competition Authority published an opinion on data processing in the online advertising sector, which also discusses advertising intermediation. In February 2018, the Bundeskartellamt issued a paper on online advertising, which mentions search advertising and intermediation. On December 10, 2018, following its digital platforms inquiry, Australia’s Competition and Consumer Commission published a preliminary report, which deals with digital platforms and online advertising.