Un-FRAND-ly Use of Content and Data and Other Abuses of Intermediation Power: The German Competition Probes into Google’s Ecosystem

Abstract

On 30 December 2021, the German Bundeskartellamt (Federal Cartel Office, “FCO”) designated Alphabet Inc., parent company of Google, (“Google”) as an ‘undertaking of paramount significance for competition across markets’. The FCO is now considering whether to prohibit particular anti-competitive practices, including Google’s collection and use of valuable content and data such as in the context of the global licensing program "Google News Showcase". This may mark the first use of antitrust law to address the interwoven competition concerns arising from the control over an entire ecosystem, as compared to the traditional market-by-market analysis. This article outlines the background to the investigation, its key topics and possible policy lessons to be learned, potentially both in the EU and the U.S. In particular, it provides a preliminary assessment of the "Google News Showcase" which the authors consider as an abuse of dominance of unprecedented scope, and a very serious threat to a free and pluralistic press.

Keywords: antitrust, competition law, digital markets, Google, gatekeepers, intermediation power, FRAND, press publishers, Google News Showcase, disintermediation, ecosystems

JEL Classification: K21, L12, L41, L86, M37, 031