DELAWARE, Ohio (WCMH) – Ohio Attorney General Dave Yost traded blows with the world’s biggest search engine in a local lawsuit and took a victory Tuesday as a judge permitted his case to proceed, but with a catch.
Google, the search engine targeted by the lawsuit in the Delaware County Court of Common Pleas, also got a win of its own. While Judge James P. Schuck denied Google’s motion to dismiss the lawsuit to regulate it as a public utility altogether, he also granted it partially.
Yost’s lawsuit filed in June 2021 argued that Google uses its search engine, Google Search, to provide results that favor its products. While it does not seek any monetary damages, he wanted to get a legal declaration that Google is a common carrier, or public utility, subject to government regulation. Yost’s case would also mean Google would have a duty to offer sources or competitors equal rights, so it would have to serve objective results, and wouldn’t be able to prioritize placing its services and websites on results pages.
“Google uses its dominance of internet search to steer Ohioans to Google’s own products — that’s discriminatory and anti-competitive,” Yost said. “When you own the railroad or the electric company or the cellphone tower, you have to treat everyone the same and give everybody access.”
Representatives for Google then filed a motion asking Schuck to dismiss Yost’s lawsuit. Google’s argument was that the First Amendment protects it from being regulated, and its method of serving results was based on what would be most helpful to the searcher.
“Google… makes the argument that its process of returning search results necessarily involves the exercise of editorial judgment and discretion because its work requires it to locate and put in order web pages based on a subjective opinion about what the user will find most beneficial,” Schuck wrote in his judgment.
The Delaware County judge ultimately ruled to move forward with what he called an “unprecedented” lawsuit. The catch was that Schuck granted the motion to dismiss all portions of the lawsuit that made the claim Google Search is a public utility. However, the portion of the case arguing Google Search is a common carrier can proceed.
“None of the cases cited by the parties or that the court could find dealt squarely with whether a search engine with an admittedly overwhelming share of the market may constitute a common carrier,” Schuck wrote. “That lack of case authority does not bring this case to a halt though… the law must adjust and develop along with the technology. The question remains then whether Google’s search function, as a private business, affects the public concern to such an extent that it should be declared a common carrier.”
A common carrier is defined as a “company providing public telecommunication facilities,” while a public utility is an organization that maintains the infrastructure for a public service like natural gas or electricity.
Yost’s lawsuit is another example of state officials challenging the power of major tech companies. A separate Ohio House of Representatives bill is targeting social media platforms like Facebook, Twitter and Google’s own Youtube. The bill, if passed into law, would allow individual Ohioans to file civil lawsuits against social media companies with more than 50 million U.S. users that block, remove or restrict them from using their sites.
Read the latest ruling from Schuck below: