I recently wrote that Google News should be sued for bias against conservative sources, not regulated. Regulating Internet news aggregators is the last thing we want, but Google News is clearly doing something wrong, that needs to be corrected.
To further this line of thought, here is a specific legal argument for the Courts to order Google News to stop discriminating. The Courts might even impose penalties for past discrimination. The Federal Trade Commission could bring such a suit, as could the users of Google News. Mind you I am not an expert on this stuff, hence the question mark in the title.
We are looking for new law so should look at first principles. I posit a variation on the product liability principle called the implied warrant of merchantability. This says the product should work. It is a fundamental principle of product liability law.
As I understand the history of this legal principle, it goes like this. (I am sure this is greatly simplified and I hope the product liability lawyers will forgive me.) A new car malfunctioned, killing the driver. The family sued the car maker, but they argued that the family had no contract with them, just with the dealer they bought the car from. They had received no money from the purchaser.
The Courts ruled that when the manufacturer sold the car it came with an implied warrant that it worked, which passed through to the consumer. This is the implied warrant of merchantability. Thus the consumer can sue the manufacturer.
The possible parallel is that while Google News has no explicit contract with its users, because they do not pay anything, this may not be the end of the legal story. Google News users do not pay, but Google derives a monetary benefit from them, namely advertising revenues, which are based on usage. This creates an implicit financial relationship.
No users, no income. Few users, a little income. In the case of Google news, there are a huge number of users, so Google gets a huge income from advertising. In fact Google News dominates the online news aggregation field, almost to the point of monopoly.
Given this huge monetary benefit, Google therefore has a reciprocal obligation to return a benefit to its users, namely good news coverage. That is the implied product — good coverage.
Politically biased coverage is not good coverage, especially given that roughly half of the users are conservatives. The users are not receiving the benefit that is owed them, in return for their usage. They are being deprived of vast swaths of news and opinion.
Note that there is a potentially confusing factor here. Google is protected by law from any liability flowing from the content it points to. The idea is that Google is not a publisher, just an aggregator.
However, Google’s product in this case is search results and it is these aggregated results that are discriminatory. This has nothing to do with specific content being wrong. The search results are wrong, as far as good coverage goes.
In fact when I quantify the bias I never look at the content, not even the titles. I just look at the politics of the source, which so far is running over 94% liberal. So Google’s legal protection from litigation does not apply.
By failing to provide good coverage, Google News is wrongfully damaging its users. The product does not work. This is a wrong the Courts can address.