Artificial intelligence: regulators scrutinise Google’s use of journalism

Artificial intelligence: regulators scrutinise Google’s use of journalism

In June, the UK’s Competition and Markets Authority (CMA) announced that online publishers and news organisations will be able to opt out of their content being used in AI summaries on Google’s search engine. The CMA has imposed this new ‘conduct requirement’ on Google to give publishers more control and stronger bargaining power over the use of their content in UK search results.

Publishers and news organisations are concerned about the impact of AI-generated summaries on the referral traffic they rely on to survive. While a large number of search users read AI summaries, many don’t click through to the original source of the information. A report by the Reuters Institute for the Study of Journalism, published in January, found that around a fifth of media leaders expect to lose more than 75 per cent of their search traffic over the next few years due to AI on search engines. ‘AI-generated search summaries have lowered the traffic that publishers depend on for advertising,’ says a spokesperson for the National Union of Journalists.

As part of the new conduct requirement Google must also ensure that publisher content is properly attributed via clear links within AI-generated search results.

The CMA has previously designated Google as having ‘strategic market status’ in search services. This allows the regulator to assign targeted rules for Google’s business to ensure ‘fair dealing, open choices or trust and transparency.’ It’s through this designation that the CMA has imposed the new conduct requirement.’

Google didn’t take up the opportunity to comment when contacted by Global Insight. It has said it supports ‘the CMA’s goals of ensuring fairness and promoting publisher choice and control.’ In June it announced it was testing a new control to allow website owners to manage how their content and links appear in its generative AI features. It’ll also provide them with further information on the use of their content. Google says the control will be trialled using a group of UK websites, before being deployed globally.

Simone Lahorgue Nunes Member, IBA Technology Law Committee Advisory Board

In a blog post about AI in search, Mrinalini Loew, a general manager at Google, said the company is ‘actively listening to feedback from publishers and creators, and engaging with regulators like the UK’s [CMA] to ensure website owners have the right tools as user preferences evolve.’

In April, Brazil’s antitrust watchdog, the Administrative Council for Economic Defense (CADE), said it’ll move forward with further investigation into Google’s use of journalistic content. The CADE is studying potential abuse of the company’s dominant market position.

The regulator began the probe in 2019, examining competition in Brazil’s search and news sectors. The CADE has said it’ll now look at how AI-generated summaries synthesise journalistic content directly within Google’s search interface, appearing to users above ‘traditional’ results. It’ll assess the extent to which summaries created in Google News and the company’s search engine are created from journalistic content and used without agreed compensation. Google didn’t respond to Global Insight’s request for comment but the company has said the CADE’s decision reflects ⁠a ‘misunderstanding’ of how its products work and that it’ll engage with the regulator.

Guilherme Ribas, Vice-Chair of the IBA Communications Law Committee and a partner at TozziniFreire Advogados in São Paulo, says the decision to elevate the inquiry into a full administrative process sends a signal that the regulator is willing to ‘dig into the potential effects and the rationale of all practices carried out by digital market players.’

‘For publishers and journalists, this might become a landmark case,’ says Simone Lahorgue Nunes, a Member of the IBA Technology Law Committee Advisory Board. ‘It will assess the economic dependence of journalism on dominant digital platforms and the conditions under which journalistic content is used, displayed, attributed and monetised.’

The CADE’s original investigation into Google examined the automated collection and display of snippet-based journalistic content in search results and was effectively shelved in 2024 due to a lack of evidence of anti-competitive conduct.

The investigation announced in April is a response to the evolution of Google’s products and the company’s use of AI-generated summaries. It’ll examine if Google’s dominant position in search is being leveraged to create a dominant position in AI-mediated information retrieval, at the expense of the news-content producers whose work is used to train these systems.

According to the CADE, this may constitute exploitative abuse. The formal administrative process will give the watchdog the power to gather evidence, issue subpoenas and ultimately levy fines or remedies.

Lahorgue Nunes, who’s Founding Partner at Lahorgue Advogadas Associadas in Rio de Janeiro, says that Brazilian case law on exploitative abuse remains less consolidated than in the EU. However, under Brazilian competition law, the CADE may assess different forms of conduct, including ‘potentially exploitative abuses in digital markets, such as unilateral imposition of unfair conditions, discrimination among commercial partners, or contractual tying arrangements,’ she says.

In December, the European Commission launched an investigation into whether Google is distorting competition by using publisher content for ‘AI Overviews’ and ‘AI Mode’ without fair compensation or meaningful opt-outs.

The Commission is concerned about the extent to which AI-generated summaries are based on content produced by web publishers without appropriate compensation or the ability for media businesses to refuse without losing access to Google Search. A Google spokesperson said at the time that the Commission’s investigation ‘risks stifling innovation in a market that is more competitive than ever’ and that the company will ‘continue to work closely with the news and creative industries as they transition to the AI era.’

If proven, the practices under investigation may breach EU competition rules on abuse of a dominant position. Bernhard Maier, a partner at law firm Browne Jacobson, says the Commission can ‘fine companies up to ten per cent of their global turnover, which would be quite something in Google’s case.’

In the US, the first private publisher lawsuit related to AI-generated summaries and Google’s potential abuse of market dominance was filed in September. The claimants, which include Penske Media Corporation, allege that Google’s AI summaries use their journalism without consent and reduce traffic to their websites. The complaint says that Google only includes publisher websites in search results if it can also use their articles in AI summaries and without this leverage, it would have to pay for the right to republish their work or to use it to train its AI systems.

‘With AI Overviews, people find Search more helpful and use it more, creating new opportunities for content to be discovered. We will defend against these meritless claims,’ said a Google spokesperson.

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