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Introduction
On the 20th November 2024, the Department of Justice (DOJ) doubled down on its efforts to shut down Google’s dominance by filing a proposal of hard-hitting remedies to the D.C. District Court. The 23-page document follows Judge Amit Mehta’s August ruling, which found the tech giant guilty of anti-competitive practices, and outlines actions that the federal enforcement agency believes are necessary to restore competition in general search services and search text advertising.
The divestiture of Chrome is among the DOJ’s recommendations – a move that could upend the entire search and digital media markets. If enforced, these measures promise to transform the tech industry, reopening doors for competitors and innovative technologies alike, and challenging established norms in digital search and advertising for the first time in over a decade.
This article explores the Google antitrust saga and the ripple effects of the DOJ’s proposals on the broader tech landscape.
The DOJ’s Current Remedies: A Brief Recap
I’ve read the 23-page proposed final judgment so you don’t have to. But before we deep dive into the DOJ’s ultimate asks, allow me to jog your memory on the major events that have led up to this very moment:
October 2020: The DOJ kicks off its legal battle against Google, suing the company in the D.C. District Court for unlawfully monopolising the search service and search advertising markets. Google’s unlawful use of multi-year exclusive contracts to make Chrome the default search engine across a host of key distribution channels sits at the heart of the DOJ’s claim.
This marks the first major federal antitrust action against Google, and one of the most significant since the 1990s Microsoft trial.
June – October 2021: Microsoft, Apple, Yelp, and Samsung, among others, join the pre-trial disclosure process to submit internal information and records that are potentially relevant, or serve as exculpatory evidence, to the case.
January 2023: The DOJ escalates its crackdown by filing a second antitrust action targeting Google’s ad tech business in East Virginia District Court. It alleges that Google monopolised digital advertising tools by manipulating fees and penalising advertisers for using alternative platforms, subsequently forcing them to spend more money on Google ads to mitigate the bottom-line impacts. The DOJ ultimately calls for the divestiture of Google’s ad tech operations.
September 2023: The trial for the default search case begins. It focuses on whether Google’s exclusive agreements and market behaviour violated the Sherman Antitrust Act by restricting competition.
August 2024: The D.C. District Court finds that, contrary to Section 2 of the Sherman Act, Google has illegally maintained monopolies in the U.S. general search services and search text advertising markets. The ruling does not include remedies for Google’s anti-competitive practices.
September 2024: The second major trial begins. It focuses on whether Google monopolised the digital advertising industry through a series of anti-competitive manoeuvres, such as eliminating competitors with targeted acquisitions and engaging in exclusionary practices. The DOJ further alleges that Google receives billions of dollars in windfall by deliberately overcharging advertisers while taking sizeable cuts from website publishers who use its advertising technology.
October 2024: Following the August landmark ruling, the DOJ submits a Proposed Remedy Framework to the D.C. District Court, outlining potential remedies under review.
November 2024: The DOJ submits an executive summary of the Proposed Final Judgment to the D.C. District Court.
So, what did the DOJ propose in its summary? The key highlights include:
- The divestiture of Chrome: Google must divest its Chrome browser, which controls almost 65% of the browser market, to conclude Google’s detrimental control of the search access point market.
- Market reentry restrictions: Google should be prohibited from reentering the browser market for at least five years.
- The divestment of related interests: Google must also divest any interest at all in rival search products, as well as AI-based query products and other browsers.
- The prohibition of anti-competitive conduct: Google must not engage in conduct that interferes with or lessens the ability of consumers to discover rival general search engines, or limits the competitive capabilities of rivals.
- Providing data and algorithm access: Google must provide its search index to rivals at marginal cost, and share user-side and ad data for free for 10 years, ensuring non-discriminatory access, privacy safeguards, and opt-out rights for publishers regarding content crawling and AI training.
If implemented, these measures could mark the end of Google as we know it, ushering in a new era of fair competition and dynamic markets.
Potential Commercial Implications: Adapting to Change
The DOJ’s case against Google represents a pivotal moment, not just for the tech giant but for industries dependent on digital ecosystems to reach consumers, manage data, and scale operations. If remedies, such as the distribution, conduct, and behavioural measures that were proposed, are implemented, the resulting changes could reshape the market dynamics for search engines, browsers, and related technologies. Fundamentally, this case underscores that even illustrious players dominating markets on an international scale are not exempt from regulatory intervention, prompting businesses across sectors to reconsider their reliance on entrenched digital monopolies.
A significant target of the proposed remedies is Google’s default browser and search agreements with device manufacturers like Apple and Samsung. Breaking these arrangements could open the door for competitors such as Microsoft’s Bing, Yahoo, or even emerging technologies to challenge Google’s dominance in search and browser markets. Such competition may foster innovation in much more diverse areas, like AI-driven search capabilities, enhanced data privacy, and personalised services, giving consumers a richer choice on the market. Moreover, new entrants and smaller competitors may finally gain access to user bases previously locked behind preinstalled defaults, and break into spheres of visibility.
Furthermore, for hardware and software manufacturers, the financial and strategic implications are profound. The potential loss of billions in guaranteed revenue from Google’s exclusive agreements could push companies like Apple and Samsung to diversify their strategies. Just last year, Google paid Apple $20bn off the back of their default search engine agreements. With Google’s control of the application waning, Apple may be prompted to develop its own proprietary search engine to rival that of Chrome, considering the company has the resources to do so. Similarly, Samsung could explore partnerships with other providers, contributing to a more diversified and competitive browser landscape.
From a consumer perspective, these changes could enhance transparency and choice. Historically, Google’s default status has limited user awareness of alternatives and made switching defaults difficult; enforced remedies are highly likely to include more visible options for browser and search engine customisation. Such measures could result in a healthier ecosystem, driven by real user preferences rather than corporate agreements, while also inspiring global regulators to adopt similar approaches, extending the case’s influence beyond the States.
This case also presents significant opportunities and challenges for law firms. Antitrust and competition law practices will be central to advising businesses navigating regulatory scrutiny and compliance and will be more awake to the potential risks of engaging in exclusive service agreements. Corporate and M&A teams may play crucial roles in managing divestitures, renegotiating contracts, and evaluating partnership opportunities resulting from a more open market. Intellectual property and technology practices could help clients capitalise on increased access to Google’s market-leading algorithms and user data, while firms with international reach must anticipate and address the case’s ripple effects in jurisdictions adopting similar regulatory stances. While the DOJ is the only state authority to have brought such claims against Google so far, future investigations across the world are foreseeable.
By challenging Google, one of the most entrenched monopolies in the digital age, the DOJ’s efforts set a precedent for regulating big tech and reshaping the global digital economy.
News to Look Out For
While the DOJ’s update is seemingly heavy-handed, its proposals against Google are merely recommendations for now. With Google set to counter-propose remedies by December 2024, the court’s final judgment isn’t expected until August 2025. In the interim, broader geopolitical factors, predominantly the incoming Trump administration’s potential policy shifts, introduce further uncertainty. After all, while this case originated under Trump’s first administration, his recent campaign rhetoric reflected scepticism of breaking up American tech giants due to their strategic role in leveraging the U.S. against global rivals.
Although the dust is still yet to settle, one thing is for certain: the future of competition and innovation will hinge on adaptability, consumer trust, and a redefined digital market. This case is also a stark reminder for businesses operating at the top – an increasingly regulated commercial landscape means those who grow too dominant risk losing it all if they abuse their powers.
For more on how antitrust investigations have impacted the tech industry, check out TSL Yoshinori Maejima’s article here.
Sources
https://storage.courtlistener.com/recap/gov.uscourts.dcd.223205/gov.uscourts.dcd.223205.1052.0_1.pdf (October 2024, Proposed Remedy Framework)
https://storage.courtlistener.com/recap/gov.uscourts.dcd.223205/gov.uscourts.dcd.223205.1062.0.pdf (November 2024, Final Proposed Remedy Framework)
https://www.theguardian.com/technology/2024/nov/21/what-does-us-department-of-justice-google-chrome
https://www.bbc.co.uk/news/articles/c62504lv00do
https://www.bbc.co.uk/news/articles/cy4g193qezno
https://www.theguardian.com/technology/article/2024/sep/09/google-antitrust-lawsuit-online-ads
https://www.cnbc.com/2020/10/20/doj-antitrust-lawsuit-against-google.html
https://www.ccn.com/news/technology/google-antitrust-ruling-consequences-apple-samsung/
