Report from MediaPost
In Brief – An Ohio appeals court has thoroughly rejected former Ohio Attorney General David Yost’s effort to revive a lawsuit seeking to classify Google as a common carrier and subject its search engine to state regulation. The case, initiated in 2021, alleged that Google unfairly favors its own products and services in search results and should be treated similarly to utilities or telecommunications providers. In a unanimous ruling, the 5th Appellate District of Delaware County upheld a lower court decision dismissing the case. In their ruling, the appellate judges concluded that Google does not function as a common carrier because it does not transport people, property, or information in an unaltered form, but instead creates a new expressive product through processes including indexing, ranking, and formatting search results. The court also warned that regulating Google search could raise First Amendment concerns.
Context – As this lawsuit fully disappears into the mists of time, note how much the policy and political dynamics have changed. On one hand, arguing over the “fairness” of Google search results is nearly as old as the commercial internet because every Google algorithm change benefits some websites and appears to hurt others. The EU and the UK are now regulating Google search under the Digital Markets Act and Digital Markets Competition and Consumers Act. While US legislators and regulators have rejected similar policies, Yelp, a long-time Google critic, is suing the search giant for violating federal antitrust law following the landmark 2024 ruling by Federal Judge Amit Mehta that Google search was a monopoly. The argument that giant online platforms like Google were “common carriers” that should not be able to discriminate against (conservative) viewpoints found its highest profile judicial champion in the early 2020’s in Justice Clarence Thomas, although the argument has appeared less often since Elon Musk bought Twitter. Today, the convergence of search and AI chatbots, including Google’s AI Overviews, has transcended traditional search rankings as the primary topic of debate about regulating Google Search.