Streetmap.EU Ltd v Google Inc. & Ors

Preferential promotion by a dominant undertaking of its own product in a related, non-dominated market may constitute an abuse if it has a reasonably likely and appreciable anti-competitive foreclosure effect, unless objectively justified.

Where conduct improves the dominant undertaking’s product, the court must assess all relevant circumstances, including the counterfactual, actual market effects and competition on the merits. Objective justification requires consumer or efficiency benefits and proportionate implementation. The availability of less restrictive alternatives must be balanced against their technical complexity, cost and effect on the quality of the dominant product.

Streetmap.EU Ltd, successor to BTex, claimed that Google Inc. abused a dominant position in general internet search by displaying a prominent clickable thumbnail from Google Maps in response to geographic queries.

The thumbnail appeared in Google’s new-style Maps OneBox from June 2007, while competing mapping services appeared only as lower-ranked blue links. The parties agreed that dominance should be assumed for this preliminary issue. The central questions were whether the conduct was reasonably likely to cause appreciable anti-competitive foreclosure in the separate market for online maps and, if so, whether it was objectively justified.

1. Disposition. The claim was dismissed. On the assumed basis that Google held a dominant position in general online search, the introduction of the new-style Maps OneBox did not constitute an abuse.
2. Applicable abuse analysis. The categories of abuse under Article 102 TFEU and section 18 of the Competition Act 1998 are not exhaustive. Preferential promotion of a dominant undertaking’s related product may be abusive where it uses market power to restrict effective competitors’ access to customers and thereby causes anti-competitive foreclosure.
3. Streetmap had to establish that the conduct was reasonably likely to harm the competitive structure of the online-maps market. A merely possible effect was insufficient. Although direct consumer harm was unnecessary, the effect in this separate, non-dominated market had to be serious or appreciable. The court distinguished authorities concerning conduct on markets already weakened by dominance.
4. The court found that the Maps OneBox improved Google Search and that Google’s intention was principally to improve its general search service, although increased traffic to Google Maps was an expected consequence. The evidence did not establish that the OneBox itself appreciably diverted custom from competing mapping providers. Changes in market share were readily explicable by competition on the merits, including differences in functionality, usability and the availability of Google’s free API.
5. The live experiment did not demonstrate appreciable foreclosure. It showed no significant reduction in clicks on blue links, and the available data did not isolate effects on online mapping websites. Other evidence was subject to substantial limitations.
6. Objective justification. Even if appreciable foreclosure had been established, Google had objectively justified the conduct. The thumbnail map was a technical improvement benefiting users. Proportionality did not require Google to adopt alternatives that imposed substantial cost, latency, complexity, accuracy or coverage problems, or that materially degraded the quality of its search results. The proposed links, user-selection, multiple-map, query-based, geocoded and crawler-based alternatives were not required.
7. No conduct complained of was attributable to Google Ireland Limited or Google UK Limited.