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Competition Law

Analysis - debate - current awareness

Field Fisher Waterhouse , 20 FEB 2015

We have owned the internet

John Cassels

Partner

We have owned the internet
In an interview published on Re/Code technology website this week, President Obama accused EU tech companies of being unable to compete with US tech companies and of colluding with the EU antitrust authorities to set up unjustified roadblocks designed to protect the EU companies' commercial interests.

Companies are increasingly incorporating whistleblowing and regulatory complaints into their commercial strategies. More than 70% of cartel investigations in the EU are triggered by whistleblowers seeking immunity or leniency. And investigations such as those now being undertaken into Tesco (for its profits overstatement and its treatment of suppliers), HSBC (in connection with allegations of facilitating tax avoidance), and Amazon (in connection with its tax status in the EU), serve to highlight the very significant costs/commercial damage associated with regulatory interventions.

As regards US tech companies, there are two ongoing Google investigations: the first, launched by the European Commission in November 2010, concerns search results ranking and advertising arrangements. Google offered remedies to address these concerns including: higher ranking for rival services in search results; not copying content from other sites; ending exclusive advertising arrangements; and removing restrictions on porting advertising campaigns to other platforms. The Commission seems likely to want more.

The second investigation was prompted by a complaint from Fairsearch, an organisation whose 17 members include US companies Microsoft and Oracle. The complaint alleges that Google has abused Android's dominant position in smartphone operating systems, by giving away the Android mobile operating system to device manufacturers (a "Trojan Horse") on condition that its applications such as Google Maps and YouTube are prominently displayed on devices. Android mobile software is installed on about 70% of new smartphones, making it the dominant mobile software platform around the world.

There is, of course, also the EU's "right to be forgotten" rule, which allows people to request that their personal details are removed from search engine results.

If you would like to discuss these issues please do not hesitate to contact John Cassels at john.cassels@fieldfisher.com
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