The discussion about the role of Antitrust in the digital economy is a hot topic. Some groups advocate that there should be more government intervention upon "tech giants" and, from the enforcement perspective, the European Commission has been taking the lead in this process. Commanded by Margrethe Vestager, the European Commission has already imposed three million-dollar fines on Google for abuse of dominant position. Such convictions are controversial. Some academics and officials say regulators should be wary of the dynamism of digital markets and avoid imposing certain remedies, at the risk of discouraging innovation.

In this scenario, one main question arises: what is the appropriate level of enforcement against tech companies? In Brazil, until last month, CADE had four different ongoing investigations against Google. In the past weeks, three of such cases were dismissed — providing clues about where the Brazilian antitrust authority stands in this debate.

The first case was an investigation initiated in 2013, regarding the practice of scraping, in which Google was suspected of appropriating content from other price comparison websites to make them available on its own product (Google Shopping). CADE indicated that Google had the potential to harm competition, as there would be incentives to leverage its dominant position in the market for general search into its price comparison service (thematic search market) by scraping ads from other price seekers. Thus, CADE understood that there was anti-competitive rationality in the conduct. However, CADE also concluded that there was not enough evidence that scraping practices did indeed take place. Therefore, the Commissioners unanimously dismissed the case.

The second case regarded Google's possible abuse of dominant position through Google AdWords' API Terms and Conditions (T&Cs) (that is, the site-related programming interface), and its potential to impose restriction clauses on advertisers, preventing them from using competing search platforms (namely, from multi-roaming).

CADE requested information from dozens of Google AdWords' customers and, after reviewing 106 responses, concluded that there was no evidence that the T&C clauses hindered multi-roaming, and that customers were pleased with the options for doing so. Thus, CADE concluded that there were no anticompetitive effects (neither concrete nor potential) and the case was closed unanimously.

Lastly, CADE Tribunal dismissed the Google Shopping case. Out of the three cases, this was the most controversial. CADE's Economic Studies Department had prepared a report about the conduct and its potential anticompetitive effects. The Commissioners disagreed over their interpretations of such data: whilst some of them concluded that the potential anticompetitive effects entailed an anticompetitive conduct, others deemed the potential effects did not surmount the pro-consumers innovations Google provided in those years. The voting tied (3-3). According to CADE's internal rules, whenever there is a tie the President's vote prevails. Therefore, with the smallest of margins, Google escaped conviction.

July 2019

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.