Court Fines Google $2.9 Billion For Censoring Small Independent Outlets

Google has been found guilty of censoring their search results and forced to pay $2.9 billion dollars in compensation, in a historic European lawsuit.

According to European Commissioner for Competition, Margrethe Vestager, Google abused its monopoly over the Internet by deciding to manipulate their search results in order to destroy a small business.

Watching the livestream 500 metres away in the Thon Hotel EU, Adam and Shivaun Raff shared a smile of relief. It had been 11 gruelling years since they realised Google was deliberately demoting their price comparison website, Foundem, in search results. Eight years since they brought their complaint to the European Commission, becoming the first plaintiffs in the case against the search firm (others include Yelp, Expedia and Deutsche Telecom.) Now, at long last, they had justice.

But the British couple didn’t celebrate. That’s not their way. “If you embark on something like this you can’t really be a victory or despair personality, because you’d burn out,” says Shivaun, 49. “We insist on it being dispassionate.” Their company was destroyed, their lives bent out of shape – but the pair insist the campaign’s been worth it. “It would have been wrong to back out,” says Adam, 51. “So we just did the right thing.”

From their tidy, white-brick home in the suburban village of Crowthorne, Berkshire, the Raffs pursued the most valuable company in the world all the way to Brussels and the Federal Trade Commission in Washington, DC – and won. The experience has taught them caution: they rarely speak on the record, and then only with care-fully-prepared quotes. Now, in the wake of the Competition Commission’s verdict, they have agreed to speak about the story behind the defining case of the internet age.

Competition abuse is difficult to understand, because its victims are usually invisible. Their presence is measured in absences: businesses abandoned; careers unfulfilled; innovations stifled at birth. Today, Foundem’s website is the digital equivalent of a boarded-up house. But when the Raffs created it in 2005, it represented a technological epiphany: a search engine for the parts of the internet Google couldn’t reach.

The idea came to Adam one day as he smoked a Silk Cut outside his office, where he ran the European weather-forecasting service’s supercomputers. With Shivaun, a consultant who managed software projects for clients such as Boots and General Motors, he’d been tinkering with an idea for a location-based dating app – Tinder before the fact. Suddenly, Adam realised the same method of narrowing down searches could be used to sort the vast iceberg of deep data hidden in the databases behind websites. A single configurable system could search and retrieve everything from property to flights to TV sets.

The Raffs were happy in their jobs, but this concept was a revelation. So, in characteristic fashion, they sat down and carefully formulated a plan. No matter how stressful the competition case has been, this method has remained consistent: no panic, no arguments, just “rigorous internal debate.” (“We’ve always been one of those irritatingly close couples,” Shivaun laughs.) The pair – who grew up barely a kilometre apart in north London, then met as students studying computer science – even look alike: dark hair; pale skin; nondescript semi-formal clothing. Yet where Adam is gruff and precise, Shivaun is all smiles and swear words. Of course, the Raffs analysed that too: for this reason, when the couple left their jobs to start Foundem, she took the role of the CEO. But within days of fully launching, their troubles with Google began, on June 26, 2006.

The culprit was an update to an algorithm ostensibly designed to root out spam, but targeted at features, such as lack of original content, that are also defining characteristics of search services. Because Google is hosted across numerous data centres, Adam was able to watch, horrified, as the penalty swept across the search engine, downgrading Foundem for every search except its own name.

One second Foundem ranked first or third (a status it maintained on Yahoo! and Microsoft’s Bing). The next, it was down in the 70s and 80s. For huge swathes of online life, Google is the default entry point. In a single stroke, Foundem had effectively been disappeared from the internet.

The Raffs knew instantly this was an existential threat. “We didn’t kid ourselves for one second,” says Adam. “If Google didn’t lift this penalty, we’d be dead.” But when they tried to contact Google, it was like sending messages into the void. Through a contact, they reached the firm’s head of search quality. The response came back from a colleague, saying he had “no specific insights to offer”.

No matter what they tried – and over the next two years the Raffs pursued every conceivable avenue – there was no reasoning with Google. Their only option was to find alternative sources of revenue, by licensing Foundem’s software to publishers such as Bauer and IPC Media.

To the Raffs, this is Google’s real crime: its inaccessibility and unwillingness to respond, even to legitimate complaints. “We’ve never said that the fault was being penalised,” says Adam. “Collateral damage in complex algorithms is inevitable. The fault was not having a procedure by which we could appeal and get timely relief.”

Still, the Raffs remained hopeful. That was, until December 8, 2008, as the pair were eating supper in their kitchen. Suddenly their phones buzzed in unison. The couple had programmed their site to send SMS alerts every time it was slow to load. Now, as they rushed to their study, they saw why: their traffic was up, way up. At first, they thought it must be a denial-of-service attack. Then one of their developers rang: they’d just been named the UK’s top comparison site by Channel 5’s The Gadget Show.

The Raffs had long been collecting evidence to prove their legitimacy. Now they had indisputable validation. They went back to Google, only to receive the terse response: “we aren’t able to offer private support”.

For the Raffs, this was the breaking point; not only was Google not going to lift Foundem’s penalty, it wasn’t even prepared to acknowledge it. “It was clear that we’d have to go to war,” says Adam. “Yes,” says Shivaun. “That was the point where we said to ourselves, ‘Fuck this. Google are bullies. This is wrong. We are going to win.’”

But what did winning look like? After a year of campaigning, the Raffs finally managed to put pressure on Google: at the end of 2009, the search firm manually “whitelisted” Foundem, which instantly saw traffic from Google search jump by “around 10,000 per cent”. But this left the couple with a dilemma. They’d seen first hand how Google strangled competition. Knowing this, how could they carry on as if nothing had happened?

The question was especially urgent, because Google’s gaming of its rankings was growing more pervasive. The focus was its product comparison service, which went by the name of “Froogle”. The service wasn’t popular: a 2006 internal document, uncovered by the Competition Commission, admitted that “Froogle simply doesn’t work”. So, in 2008, Google rebranded it “Google Product Search” and started boosting it to the top of search results – an in-house version of black hat SEO. At the same time, it artificially demoted rival sites in the same way as Foundem: down to, the Competition Commission found, a minimum of page four on average, causing drops in traffic of 90 per cent.

The shift was symbolised by a new box at the top of Google that presented search results in pre-digested form. Sometimes these were helpful: dates of birth, song lyrics, simple calculations. But, very often, the “answer” was in fact a link to a paid-for Google product. In Google’s early days, founders Larry Page and Sergey Brin proudly proclaimed that, “We may be the only people in the world who can say our goal is to have people leave our website as quickly as possible.” The hidden addendum now appeared to be: as long as you go somewhere else on our estate.

Once again, the Raffs worked through their options. The Competition Commission was interested in their case. Should they take it forward, given what that could involve? They considered Google quietly twisting the world’s primary source of information to suit its own commercial agenda. “We decided to keep going,” says Shivaun. “We didn’t know quite how long that would take.”

Many times over the years, the Raffs have pondered the unlikely combination of circumstances that allowed them to fight Google so hard for so long. Sometimes it’s the small things: the fact that they didn’t take venture funding for Foundem, which meant they could operate without pressure from investors. Other times it’s the larger facts of life: their technical backgrounds, their decision not to have children, or simply their marriage, which has allowed them to remain together in a way few business partners ever could. What this has added up to is an ability to focus on the case to the exclusion of everything else – and on no occasion was this more important than when the battle was almost certainly lost.

When the Raffs filed their finalised competition complaint in February 2010, the Commissioner was former Spanish politician Joaquín Almunia. At the time, pre-Snowden, Google’s image in Europe was sparkling. Rather than prosecuting the firm, Almunia offered it an opportunity to settle, by tweaking the way it showed searches for products. He wanted a quick fix. Instead, he set the stage for an excruciatingly drawn-out conflict.

The difficulty was Google’s plan to restore competition on its site. It proposed an auction system, whereby rivals would bid for links below its own specialised services, such as shopping and travel, an area in which it was expanding aggressively. Google claimed this approach would increase its competitors’ visibility and traffic, which, strictly speaking, was true. What it failed to mention was that the auction would consume most of its rivals’ profits, because they would have to bid against each other to appear in search results.

To compound the situation, every penny from the auction would go directly to, of all places, Google. Even if its subsidiaries lost out, the parent company would continue to reap the financial rewards.

By now the couple had been joined by numerous other complainants, including Expedia, TripAdvisor and Microsoft – a fact Google, keen to portray the conflict as tech firm infighting, made much of in public relations. Through seemingly endless meetings and white papers – “a Herculean struggle,” Adam calls it – the group was able to push back against Google, first in 2012, then again in 2013. “It was so obvious this auction was counter to a remedy,” says Adam. “And then the Commission rejected it,” adds Shivaun. “And everyone thought. ‘Okay, that’s really good’.”

The relief was short-lived. In January 2014, with his five-year term as Commissioner nearing an end, Almunia decided to force through a deal. As the global elite tramped through the snow at the World Economic Forum in Davos, he came to an arrangement with then-Google CEO Eric Schmidt. The search engine would place the results of three rival websites alongside its own results at the top of its pages – with the choice of sites decided, once again, by auction. In return, Almunia would ensure the proposal passed the ratifying vote at the Commission. There would be no disagreement, because he wouldn’t give the plaintiffs a chance to complain. Ten days later, Almunia triumphantly announced that Google’s case was settled. To the complainants, now in the dozens, he dispatched formal letters of “pre-rejection”.

The Raffs’ situation looked grim. “We were on the beaches, with our backs to the water, trying not to get in the boats,” Shivaun recalls. They rushed to Brussels to rally their fellow complainants. In the conference room, the mood was bleak. “‘Look, let’s just check,’” they remember the first person to speak saying. “‘No one actually thinks we can overturn this, do they?’”

Nobody did. That is, until they came to the Raffs. “You may think this is naïve,” Shivaun said. “But the good news is, it’s so bad, it’s good.”

“All of us around this table,” Adam added, “understand that this is the anti-competitive equivalent of letting off a nuclear bomb. It is going to destroy the market rather than rescue it. It is our responsibility, as the people who understand that, to do everything we possibly can to explain this to the Commission.”

There was a glimmer of hope. When the Raffs’ pre-rejection letter arrived in Crowthorne on June 3, 2014, it came with a package of supporting documents, including some of Google’s official arguments to the Commission. For the first time since the firm proposed its auction, the Raffs – who, they say, were one of just two complainants granted access to this critical submission – were able to see what their opponent was saying in private. And, as they read, they realised how Almunia had been fooled.

To a non-expert eye, Google’s paper was convincing. “I was reading it thinking, this is dangerous, because it was compelling if you don’t understand the technicalities,” says Adam. Together, the Raffs set to work on a document deconstructing Google’s arguments. Adam wrote, a man possessed. Shivaun tracked down footnotes. (To relax, they watched Breaking Bad.) The process was stressful, yet also clarifying.

“That was the veil lifting from our eyes,” says Adam. “For the first time, rather than punching in the dark against unknown arguments, we could see the evidence and unequivocally demonstrate the auction’s catastrophic effects.” But with a mere four weeks to draft a response, could they find a way to explain that to Almunia?

This time, however, the Raffs were not alone: in Brussels, the political mood was turning against the deal. In May 2014, Germany and France’s economy ministers had sent a letter to Almunia querying his handling of the case. Powerful Commissioners raised public concerns, not only about the design of the auction, but also about the principle of search itself. Shouldn’t search results be based on merit and usefulness, rather than who could pay the most?

Behind the scenes, Google fought to paint this as established industries conspiring to fight off digital innovators. “There is a very dangerous and counterfactual narrative that Google is pushing,” says Adam, “which was that it was political pressure – and there was – but that political pressure was the result of politicians understanding what a complete sham Google’s proposal was.” And, the Raffs say, the killer blow was their paper, which they finally submitted on July 11, 2014.

Eleven days later, in a confused meeting with journalists which shifted from being on the record to off the record, Commissioner Almunia hinted that he was preparing to go back on his Google deal. The reason: concerns raised by complainants, in particular about the design of the auction. The “nuclear option” had been averted. With Almunia’s term subsiding to an unhappy end, the Google case would fall to a new Commissioner.

The Raffs met Vestager in January 2015. As soon as she appeared, they could see her regime was going to be different. Under Almunia, they had been ushered through an almost ceremonial procession towards the Commissioner – “like meeting a 19th century potentate,” as Shivaun put it. Vestager collected them herself from the waiting room and showed them straight into her office, which was bedecked with colourful ornaments, including a plaster cast of a hand with an outstretched middle finger. But although she listened carefully to the Raffs’ case, of her intentions in the matter, she gave no sign. That was until the indictment three months later that prepared the way for her stunning guilty verdict of June 2017.

Vestager’s judgement is being appealed by Google, so the Raffs’ civil lawsuit, which depends on that verdict, may be several years from resolution. Just as importantly, Google’s competition case now moves into the stage of remedies, where the search giant is forced to implement solutions to its own anti-competitive behaviour. Its first attempt, introduced in late September 2017, had a familiar air: an auction for links, whereby ability to pay determines what rises to the top of a search. (A Google spokesperson said it “complies with the European Commission’s order”.)

But even if it does – and the Raffs insist it doesn’t – the proposal again raises the question: is payment a good way of deciding what rises to the top of search?

For the Raffs, this remains the burning issue, which the technicalities of auctions and algorithms all too often obscure. They see it simply: Google, or any other search engine, should present only impartial results that do not benefit it financially. It sounds idealistic, but why should it? “After all,” says Shivaun, “this is what people want, and what they believe Google still delivers.” This is the end the Raffs keep in sight: an internet in which search is neutral. And to get it they must keep stepping forward, again and again and again.

How do they keep going, after so long? “If we get the right outcome we will not feel embittered,” says Adam. “You know, one other thing we say to each other all the time is, ‘May you live in interesting times’.”

But that’s a curse, I say. “We don’t think it is,” says Shivaun. “It’s a good thing. If this goes well-”

“If this goes well,” Adam says, “we’ll have had a blast.”