What would you do if your web site was “sandboxed” by Google? If you’re children’s search engine KinderStart.com, you’d spend a few weeks wondering why site traffic had fallen by more than 70 percent and why AdSense revenue was in the toilet. Then you’d sue Google.
The company filed a complaint (PDF) against Google earlier this year in which KinderStart alleged that Google’s behavior was monopolistic and violated the smaller company’s “constitutionally guaranteed freedom of speech.” The blockage of KinderStart’s site from the Google index allegedly occurred without warning or notification of any kind, and the company’s attempts to get answers from Google have fallen on deaf ears. Now KinderStart wants its day in court, and its complaint seeks class action status for all companies similarly affected.
Google is no stranger to these sorts of lawsuits. Courts have so far been unwilling to rule against the search engine because it is a private business that is allowed to make its own editorial decisions about what will and will not be included in the Google index. Google agrees, and in its motion to dismiss points out that chaos would result if courts got involved in the search engine business.
Plaintiff KinderStart contends that the judiciary should have the final say over that editorial process. It has brought this litigation in the hopes that the Court will second-guess Google?s search rankings and order Google to view KinderStart?s site more favorably. If KinderStart were right, and websites could use the courts to dictate what the results of a search on the Google search engine should be, neither Google nor any other search engine could operate as it would constantly face lawsuits from businesses seeking more favorable positioning. Fortunately, KinderStart?s position finds no support in the law.
Though the judge in the case has shown skepticism toward most of KinderStart’s claims, he did show interest in the charge that Google may be abusing a monopoly position in order to silence competitors. He may now give KinderStart time to amend its complaint with more specific information ahead of a September 29 hearing. His concern is apparently that Google has taken some sort of action against a rival search engine, a move which could be seen as an abuse of market power. KinderStart agrees.
“What Google is trying to do is take out the competition,” said Gregory Yu, KinderStart’s attorney.
This claim seems difficult to reconcile with the fact that Google provides ready access to far larger search engines like Yahoo, MSN, and Ask, just as it is difficult to make the case the the Big G is actually a monopolist (it currently serves up less than half of all Internet searches in the US).
It must be frustrating for a site like KinderStart to have its traffic dry up without explanation, but the business model has a problem if 70 percent of all traffic comes from Google searchers. Such a number suggests that the site has been unable to attract repeat visitors or to build its brand as a one-stop destination for children’s information. It also highlights the need for a diverse revenue base, one that is not built solely on AdSense.