Streetmap has filed a notice for leave to appeal with the Court of Appeal on 18th March. In summary Streetmap believes that “a giant’s strength needs to be used with care, forethought and restraint not to hinder competition anywhere”. The first instance judgement of the High Court gives the ‘giant’ a carte blanche to proceed without due consideration of its legal obligations.
Google is accused by Streetmap of abusing its dominant position in Online Search to the detriment of competitors in related markets; in this case, the online mapping market. The High Court issued its decision on 12 February 2016 and found that Google had not abused its dominant position and that, even if it had, its actions were objectively justified.
Streetmap is seeking leave to appeal against the decision on three grounds:
- Firstly, that the Judge erred in his legal treatment of the test for ‘abuse’. Streetmap contends that there is no ‘de minimis’ threshold for abuse of dominance claims; when Google put Google maps at the top of its search results with an eye-catching map while others had to make do with blue links, that conduct could have (and did) amount to abuse simply because it had a “likely” effect on competition in the online mapping market. The High Court decision creates a new test of showing an “Appreciable Effect” – meaning showing an appreciable effect on all competitors in associated online markets – rather than the test that has applied to date, namely a “likely” effect on those markets. This is critically important. Many abuse of dominance cases come to light shortly after the alleged abuse has happened; having to show appreciable effect would, in many cases, allow the abusive practice to proceed unrestrained, often giving rise to considerable damage to businesses in associated online markets where the fast moving nature of the technology sector requires swift intervention.
-Secondly, Streetmap contends that a dominant company has a duty to comply with the law and a special responsibility toward other plays in associated markets as the holder of that dominant market position. Google admitted at the trial that it did not actually consider the likely effect on competition of its actions at the time they were taken. Streetmap thinks that it should have done so.
-Thirdly, Streetmap contends that the judgement wrongly interpreted the evidence before the court and had that evidence been interpreted correctly (or applied consistently with the other findings of fact), alternative findings would have been made.
Streetmap maintains the position that Google’s conduct amounted to an abuse of dominance and that the High Court Judgement, as it stands, paves the way for Google to use its dominant position in search, to gain a competitive benefit in any related market, without compliance with its legal obligations. This position is clearly contrary to the approach of the EU commission and contrary to previous findings of UK and EU Competition Law. It sets a dangerous precedent that the internet ‘giant’ that is Google will not be restrained by its Competition Law obligations. Streetmap believes that “a giant’s strength needs to be used with care, forethought and restraint not to hinder competition anywhere”.
As a matter of process the High Court Judgement was handed down on 12 February 2016 and the time to apply for leave to appeal was extended to 35 days. The notice was filed on 18 March 2016 and the Court of Appeal will now decide whether leave to appeal is to be granted.
