Among the most interesting current legal events is certainly the case opened last October by the US Department of Justice against Alphabet, the company that controls Google. Specifically, the US government allegedly accused Google of unfair competition in order to avoid losing its monopoly on search engines. One could speculate on the relationship between commercial monopoly and free market, especially with respect to this legal case, but in order to understand the positions of the prosecution and the defence, it is worth giving the reader an overview of the events that have taken place so far.
What emerges from the investigations of federal investigators is that every year Alphabet allegedly pays between 8 and 12 billion dollars to Apple to ensure that Google remains the default search engine on iPhones. These devices, according to the US government’s estimates, account for almost 50% of searches made through Google, while the rest appears to be searches carried out on Android phones. It is also estimated that, overall, this web browser covers 90% of web searches in the United States, with annual earnings in the order of billions of dollars obtained thanks to advertisements on the results pages.
Alphabet, of course, has defended itself against the Justice Department’s accusations by claiming that the agreements in question exist, but that they are legitimate from their point of view because people freely decide to use their search engine, without being obliged to do so.
Generally speaking, antitrust agreements, on the one hand, prohibit agreements and practices that restrict competition and, on the other, limit the concentration of economic power and pursue the abuses made possible by the formation of monopoly positions.
On closer inspection, this is undoubtedly true because it is undeniable that the average digital user, faced with a choice, a priori chooses Google, being synonymous in the collective imagination with the best quality and completeness of results in online search. And yet, it is precisely in this absence of choice, dictated by the awareness that there are no competitors, that the problem of the modern digital economy lies as Google, as well as Amazon in the e-commerce sector, to give another example, as giants in their own sector leave no room for competitors. For some time now, antitrust experts have been arguing that the products of the main US technology companies, including Facebook, have reached such a pervasiveness that they represent a de facto monopoly, and in this horizon of thought the case in question is particularly relevant, because it brings to the attention of the global community the delicate and subtle balance that underlies the world of the free market, threatened by its very nature by the birth within it of possible monopolies.
Being a global giant, however, Google has not only taken on antitrust cases at home, but also in our continent, where the company has been fined by the European Commission for competition issues for a total of 8.2 billion euros – the last time in March 2019, with a fine of 1.49 billion euros. At the centre of the controversy in this case was the AdSense service and the abuse of a dominant position, with which it allegedly imposed restrictive clauses in contracts with third-party sites to prevent the publication of ads by search engine competitors. In July 2018, however, a fine of €4.34 billion was imposed by the European antitrust authorities for abuse of a dominant position in mobile phone operating systems. The prosecution claimed that Google would have imposed Android on devices, guaranteeing itself a privileged position in the operation of its applications against those of rival companies. Even earlier, in 2017, the European Union had fined Google 2.42 billion euros for manipulating search results for its Google Shopping service.
From a legal point of view, it has been possible to sanction such harmful behaviour to free competition thanks to the so-called antitrust laws. The European legislation, in fact, has established a regulation of restrictions on free competition and acts of unfair competition, with the function of settling relations between entrepreneurs while maintaining the principle of free private economic initiative while respecting the freedom of others. However, this regulation does not take into account the effects that agreements and behaviour of entrepreneurs may have on the functioning of the market. Instead, the antitrust legislation, i.e. the set of rules that the public authority sets out to protect competition as the ideal context of freedom of economic initiative, is designed to achieve this purpose. Generally speaking, antitrust agreements, on the one hand, prohibit agreements and practices that restrict competition and, on the other, limit the concentration of economic power and pursue the abuses made possible by the formation of monopoly positions. In the European Union, competition protection rules are contained in the TFEU (Treaty on the Functioning of the European Union) and aim to prevent member states from implementing policies that support national companies to the point of altering the mechanisms of competition within the common market.
On closer inspection, even though the European lawsuits against Google are also quite legally relevant, experts believe that this year’s US case will be the most important judicial initiative decided by a government against a major technology company in recent decades.
In addition to the legal issue, there is also a more ‘philosophical’ one: if the field of results of a free web search is subordinate to the choice of algorithms of a private company, is it still possible to speak of true freedom? That is, if the criteria for the appearance of the results are chosen aprioristically by the search engine manager, it is theoretically and practically possible that they are oriented in specific ways regardless of the real desires of the clients. In other words, whoever chooses which results appear in a privileged way with respect to searches in some way directs the decisions themselves, because they present the various possibilities of choice in an arbitrary way. Thus, the web, which represents one of the manifestations of maximum individual freedom of individuals, would instead prove to be limited and limiting.
And yet, although painted in these circumstances as the villains of history, it must be acknowledged that the giants of the web have individually and meritoriously acquired supremacy in their field, creating their catchment area over time and working to excel among their competitors; which also means they have managed to provide their clients with the best market conditions and the best service for a given product in a precise historical period. In truth, one must also recognise that companies working in the online industry have been able, through their successful and far-sighted entrepreneurial policies, not only to grow to the point of establishing themselves as leaders in their field of expertise, but also to expand the very field in which they operate. In fact, it is also thanks to these giants that the world of the internet is full of unexplored and brand new possibilities and from this perspective it seems wrong to negatively judge a leading company in constant development, as it is reasonable to believe that it is perceived rather as an entity in the right to grow and saturate those new spaces that are gradually being created. Lastly, it should be considered that demand in the online world is neither stable nor predictable, and the contingent pandemic emergency has helped to amplify it considerably.
In this perspective, the statements of those who believe that antitrust laws are only imposing a continuous and fickle persecution of the efficient enterprise are not wrong, but it is necessary, in the writer’s opinion, not only to protect against the monopolistic drifts of the present, but also and above all to avoid killing the potentially even more performing projects of the future.
 L’enorme causa del governo americano contro Google, in Il Post, https://www.ilpost.it/2020/10/21/causa-google-antitrust-governo-stati-uniti/
 Murray N. Rothbard, Potere e Mercato: Lo Stato e l’economia.
 “Diritto commerciale v.l. 11: la disciplina della concorrenza e la normativa antitrust”, Studio legale Avv. Davide Tutino, https://www.youtube.com/watch?v=GVhKdvaQQDs&t=583s