BREAKING UP OR MAKING UP: THE REMEDY DILEMMA IN THE GOOGLE ADTECH CASE

[Aashi Sharma & Priyal Jain are fouth-year students at Rajiv Gandhi National University of Law, Punjab]

Introduction

Recently, British advertisers have filed a lawsuit against Google seeking up to 3 billion euros in compensation for its alleged abuse of dominance in the online display advertising market. However, this is not first in the series of pending and disposed antitrust law suits against  the tech giant for favouring its own online display advertising services. Over the past year, Google has been subjected to antitrust scrutiny in major jurisdictions for self-preferencing its own Ad Exchange (AdX).

In the United States, Judge Brinkema ordered a  divestiture of its Ad Exchange among other remedies against Google’s illegal monopolisation in the online display advertising market. However, the same is undergoing serious consideration by the Judge and will likely unfold over the year. Nonetheless, the European Union took a more conclusive approach by imposing behavioural penalties worth  2.95 billion euro. As of August 2025, the Competition Commission of India (CCI) also passed an order initiating investigation into Google in the display advertising market. This investigation will primarily concern allegations of self-preferencing, leveraging and tying.

This article examines Google's Adtech dominance, analyses the fundamental antitrust remedies deployed across major jurisdictions and gauging the effectiveness of the current framework in remedying another one of Google’s abuse of dominance in the digital markets.

Analysing Google’ Case

GOOGLE’S DOMINANCE

In the online display advertising market, there are certain important components, collectively known as adtech stack, which includes, Publisher Ad Servers (PAS), Advertiser Ad Server (AAS), Demand Side Platform (DSP), Supply Side Platform (SSP) and Ad Exchange. Google has its platforms in all the three sides of the market, i.e., demand side [DoubleClick Bid Manager (DBM)]/[Display&Video 360], supply side [Google Ad Manager, formerly known as DoubleClick For Publishers (DFP)] and the Ad exchange [AdX]. In 2007, Google acquired DoubleClick, one of the leading online advertising network, for $3.1 million. This gave Google a stronghold on the online advertising market in the demand as well as supply side. Prior to acquisition, DoubleClick was a leading platform where major publishers published their bids and advertisers delivered their advertisements. It acted like an intermediary between the two and had its own ad exchange until Google acquired it. This gave Google access to a gargantuan amount of consumer data apart from being the number one search engine and hence already having access to consumer data on the internet. 

Followed by this, Google acquired Invite Media in 2010, an ad buying tool for large advertisers. Such platforms were used by Advertisers to compare prices for ad spaces during each publisher’s bidding. Simultaneously, Google was developing its demand side platform i.e. DV360 to integrate it with Invite Media in order to tap into a much larger network of advertisers. A 2020 Bloomberg report revealed that Invite Media cut down its assets to a level where it was not subject to Federal Trade Commission’s Pre-merger review in order to sail through the merger with Google successfully.

Likewise, Google acquired AdMeld in 2011 for $400 million. This startup also acted like an intermediary which facilitated a comparison of ad prices but for news publishers like Thomson Reuters and News Corp. It provided access to these publishers to different ad prices from several ad exchanges outside of Google’s ad network. This was done so as to circumvent Google’s control over ad exchanges. According to the Department of Justice (DoJ), Google perceived AdMeld as a “threat” to its network of publishers. While it let AdMeld’s publishers connect with other ad exchanges, it eventually integrated the company’s publishers into its own ad exchange, thereby, completely shutting down its operations.    

Thus began its dominance over the entire online advertising sector. To curb its growing dominance, Microsoft, which saw Google as one of its biggest rivals, agreed to pay double i.e. $6 billion to acquire Quantitative, another online advertising company. Although the deal eventually failed, this move by Microsoft shows how other players in the market saw Google as a potential antitrust violator with these acquisitions.

ALLEGATIONS AGAINST GOOGLE

It is alleged that Google has tied its PAS with the AdX, thus forming the Google Ad Manager, through which it indulges in self-preferencing by providing its own ad exchange (AdX) the first access to the ad impressions. Even the open bidding policy of Google also raises eyebrows as Google being both the host and participant imposes unfair terms on both the publishers as well as Third Party Exchanges (3PX). These allegations along with certain more has compelled CCI to initiate an investigation against Google.

The British lawsuit and CCI investigation order comes at a critical juncture especially as Google’s adtech practices have already been found to be anti-competitive by the authorities in the EU and the USA. However, the nature of remedies in both these jurisdictions is yet to be decided and with the proposals ranging from monetary penalties to a potential divestiture, the scope, imposition and potential effectiveness of such remedies still remain in a state of regulatory ambiguity, which will be dealt with in the following section.

Understanding The Competition Remedies and Their Regulatory Implications

Remedies play a pivotal role in ensuring the implementation of substantive antitrust law. They can be understood as “measures that aim to stop current or future unlawful conduct, prevent its recurrence, cure or prevent the conduct’s anti-competitive effects, and restore competition.” The primary function of remedial interventions is to restore the competition in the market which is disrupted by antitrust violations. Scholars who press for a remedy-centered approach to antitrust law emphasise how remedies help define the rights of parties when considering substantive antitrust law. Competition Agencies across the world, essentially, impose two kinds of remedies i.e. Structural and Behavioural.

STRUCTURAL REMEDIES

Structural remedies are one-off solutions which require firms to divest, release or carve-out their tangible or intangible assets. They aim at breaking up the undertakings into individual business units, releasing or transferring their intellectual property, or selling businesses, shares or subsidiaries to third parties. On the contrary, behavioural remedies are general commitments or prohibitions to act or not to act in a particular manner. They predominantly alter how a firm conducts its operations and are always forward looking as they create limits on the future business behaviour of the firm. 

There is a relatively frequent use of structural remedies in merger cases and behavioural remedies in abuse of dominance cases. For instance, the US Department of Justice Merger Remedies Manual explicitly prescribed behavioural remedies only for narrow circumstances in merger cases. While in EU structural remedies are unheard of in non-merger contexts as is evident from Article 7(1) of Regulation 1/2003. 

Regulation 1/2003 puts structural remedies on a pedestal by only allowing their imposition in ‘exceptional circumstances’ in case of antitrust violations. Further, there are three conditions which must be satisfied to impose structural remedies i.e. (1) in case behavioural remedies fall short; (2) must be effective; (3) must be proportional.

There has been an unsuccessful implementation of structural remedies across abuse of dominance cases in antitrust history. In 2001, the U.S. Court of Appeals, considered a potential divestiture of Windows and Office in United States v. Microsoft Corp. While concerns regarding loss of efficiency and lack of interoperability were expressed during that time, it was ultimately rejected owing to ‘logistical difficulties.’ The court of appeals held that ‘a corporation designed to operate effectively as a single entity, cannot readily be dismembered of its various operations without a loss of efficiency.

Furthermore, structural remedies, in many cases, have proved to be ineffective owing to gradual changes in market dynamics, burgeoning competition and innovation in markets that are especially driven by technological and policy shifts. For instance, in 1984, AT&T was divested into seven “Baby Bells” to promote competition in the telecommunications market. However, by early 2000s, several of these baby bells were re-integrated on account of the rapidly evolving markets and technological convergence.

BEHAVIOURAL REMEDIES

However, given the limitations of structural remedies, the pertinent question is whether behavioural remedy could offer a more effective solution. Behavioural remedies have been shown to be less effective and require constant monitoring and costs. In most abuse of dominance cases, a set of complementary behavioural remedies like imposing penalties, modifying existing contracts, introducing new pricing schemes, enabling customer switching, amending compliance programmes etc are introduced to ensure an equally effective deterrence to the firm as structural remedies. Nonetheless, the effectiveness of these remedies is often questioned when compared to structural remedies. While structural remedies result in permanent, irreversible change in the market, behavioural remedies impose commitments on firms which don’t disincentive them to engage in abusive conduct in the long run.

In October 2022, the Competition Commission of India imposed a penalty of Rs. 1337.76 crore on Google for abusing its dominant position in multiple markets in the Android Mobile device system. The commission also directed Google to modify its conduct within a defined timeline. Fast forward to 2025, the tech giant is once again caught in antitrust proceedings after the CCI directed a DG investigation into the alleged abuse of dominance of Google in Online Display Advertising service. This justifies that mere use of behavioural remedies did not prevent Google from leveraging its dominance and engaging in anti-competitive across its verticals. 

Crafting A Balanced Remedy for The Google Adtech Conduct

These instances in antitrust history raise doubts with regards to the effectiveness of both Structural and Behavioural remedies. While it is a commonly held belief amongst scholars that structural remedies should be resorted to when behavioural remedies prove ineffective, the unsuccessful implementation of structural remedies in non-merger contexts are testimony to the assertion that neither of these remedies, singularly, are a one-stop solution.

The US DoJ justified the divestiture of Google’s AdX on the ground that structural remedies are suitable in cases where the party engages in the anticompetitive conduct to acquire and maintain monopoly, as opposed to merely maintaining an existing monopoly. While the structural remedies may be costly to administer and could potentially dampen the innovation incentives, these concerns shall not be the sole benchmark to assess their relevance and necessity.

A rather less contentious alternative to a structural remedy like divestiture could be access remedies, which seek to rectify the competition harm by enabling access to third parties of essential resources required for fair competition. In the Google Shopping case, Google was required to grant equal access to its competitors. However, structural remedies become the need of the hour when the company’s structure lies at the heart of the entire contravention and there would remain substantial risk of recurrent infringement if such remedies are not implemented. Moreover, it is pertinent to note that structural remedies cannot always be completely achieved by a single act like divestiture, it may require complementary behavioral remedies.  

In the instant case, the divestiture of AdX is important as without the same, no amount of monitoring or regulation could stop Google from leveraging and abusing its dominant position. This stems from the vertical integration of Google across both the demand and supply side platforms, enabling it to act both as the auctioneer and a participant in the bidding simultaneously, thus, necessitating the elimination of the inherent conflict-of-interest.

However, since Google’s AdX is vertically integrated with the other layers of the adtech market, divesting the bottleneck alone won’t help and it would require other behavioral remedies to prevent the exploitation of the market further. Even after divestiture, Google would still control the PAS and would therefore, be in power to decide which buyer or exchange to be chosen for the ad impression, thereby, capable of favouring its own ad server tools, making the entire structural remedy ineffective. Hence, mandating Google to make its auction mechanism publicly available would help serve two purposes, first, it would prevent Google from abusing its position in the PAS market and further, it would also help ensuring transparency which in turn would serve as a long-term safeguard against any anti-competitive conduct by the company that acquires AdX after the divestiture.

Furthermore, certain more behavioural remedies like the interoperability obligations of requiring Google to grant the rivals with the requisite data needed to enable publishers to shift to other PAS, commitment to treat all the adtech tools equally in future to help prevent self-preferencing, and the like can also be imposed so as to ensure that an effective remedy is finally put into place and the competition in the market is salvaged.

Conclusion

So far, remedial intervention, in the Google case, has largely been behavioural commitments. While Google continues to press for behavioural remedies across Europe and the US, it has proposed a series of commitments ranging from granting rival PAS access to real time auction bids to agreeing to monitoring mechanisms. However, these remedies are not yet accepted by both the jurisdictions due to the obvious apprehension of allowing Google to retain its adtech dominance intact. Thus, authorities like the CCI and the CMA will have to be mindful of  the path of remedies they go about after looking at the experience of their counterparts. While Behavioural remedies have repeatedly not sufficed to curb Google’s abuse of dominance, structural remedies are faced with a lot of general resistance and logistical challenges.