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Request for Comment

Summary:

The Ohio Attorney General’s Office is seeking comment regarding creating a rule to regulate the placement of products or services owned or operated by an internet search provider.

Dates:

All comments must be received on or before 11:59pm EST on August 30, 2020.

Background:

The Consumer Sales Practices Act (R.C. 1345.01 et seq.) regulates consumer transactions between consumers and suppliers. R.C. 1345.05(A) grants power to the Attorney General to adopt, amend, and repeal rules.

Purpose:

The purpose of this Request for Comment is to determine whether it is necessary and, if so, how the Attorney General should regulate general web searches that preference the provider’s own products or services on a Search Engine Result Page (“SERP”). A proposed rule would aim to regulate internet search results that preference or display in a more prominent position products or services owned or operated by the search provider on SERPs.

By way of example, the question is whether it should be declared an unfair or deceptive act or practice for “Search Engine A” to give general preference in placement to a product(s) that Search Engine A owns or operates (“Owned Products or Services”) and/or to feature its Owned Products outside of the normal algorithm(s) that populate results under normal searches.

For purposes of the Request for Comment, the aforementioned shall be referred to as the “Proposed Rule.”

Request for Comment:

Please provide any comments you may have. Please notate the number and subpart for which you are responding. Particularly helpful are comments to any or all of the following questions:

  1. Is a Proposed Rule needed? Why or why not?
  2. What is the appropriate definition of “search engine” and “search provider” for purposes of a Proposed Rule?
    1. What terms are inappropriate to include in the definition of “search engine” that may otherwise normally be included?
    2. What terms are inappropriate to include in the definition of “search provider” that may otherwise normally be included?
  3. How, if at all, is the structure of SERPs unfair or deceptive?
    1. Specifically, how are the structures unfair or deceptive as related to integrating or prioritizing Owned Products or Services?
    2. Specifically, how are the structures unfair or deceptive as related to displaying paid-for advertisement in positions or locations that confuse and/or prioritize those results over that of natural search results.
  4. What, if any, identifiable or quantifiable consumer harm is caused by search engines giving preference to Owned Products or Services?
    1. How can this Proposed Rule adequately address the harm? 
    2. Are there market-based solutions that reduce or eliminate the need for potential regulation?
    3. Is there a regulatory structure that could reduce or eliminate the harm without significantly hampering search result quality or interfering with innovation?
    4. Would the benefit of a Proposed Rule outweigh the current harm to consumers?
  5. Should a Proposed Rule (or a similar rule) govern the population of Owned Products or Services by non-search engine websites, for example, by third-party selling sites?
    1. If so, who should the rule govern? 
    2. If so, for what reason(s)?
    3. If not, for what reason(s)?
  6. Should a Proposed Rule (or a similar rule) govern the population of non-Owned Products or Services that are paid advertisements from which the search engine derives revenue?
    1. If so, for what reason(s)?
    2. If not, for what reason(s)?
  7. Should Owned Products or Services be subject to the same underlying algorithmic process as all other searches?
    1. Why or why not?
    2. Is it ever appropriate to give algorithmic preferences or to evaluate outside of the normal process for an Owned Product or Service?
  8. Should a Proposed Rule apply to preferencing a “comparison shopping service” owned or operated by a search engine in which the search engine produces results for a specific category of products, services or information grouped together in one result to allow for comparison shopping by aggregating data from different platforms?
    1. Is it relevant if inclusion in comparison shopping services is based on paid inclusion in which a third-party must pay the search engine to be included?
    2. Is it relevant if inclusion in comparison shopping services is based on the third-party paying the search engine if a user clicks through to its website via the comparison-shopping service result?
    3. If the answer to either of the above is yes, what method of disclosing the relationship would remedy any consumer harm.
  9. What evidence, if any, exist surrounding consumers’ cognition, perceptions, preferences, or the like regarding the population and placement of Owned Products or Services?
  10. Should all Owned Products or Services be treated in the same manner?
    1. If not, which Owned Products or Services should be more strictly regulated?
    2. If not, which Owned Products or Services should be less strictly regulated
    3. What evidence, if any, exists for your reasoning? Does this evidence show consumer harm?
  11. How, if at all, should a Proposed Rule guard against future changes in technology?
    1. Can the rule be written in a way that it would be applicable and relevant to future technology changes?
    2. Can the rule be written in a way that does not regulate internet search technology itself or harmfully interfere with innovation in the marketplace?
  12. Are additional disclosures necessary to inform consumers how search results are populated?      
    1. Is disclosure an appropriate alternative to a prohibition or to regulating the layout or structure of SERPs?
    2. What should the parameters of effective disclosures look like?
    3. Are disclosures necessary in addition to a prohibition?
  13. How is regulating SERPs similar to or different from regulating online advertising such as car advertisements?
  14. Would a regulatory solution that requires the presence of a toggle switch that has the ability to turn off or hide results other than natural search results be feasible, workable and/or productive to achieve the intended purpose?
  15. What benefits would a Proposed Rule have for consumers? What evidence do you have or know of that shows these benefits?
  16. What harms would a Proposed Rule have for consumers? What evidence do you have or know of that shows these harms?
  17. What benefits would a Proposed Rule have for search engines? What evidence do you have or know of that shows these benefits?
  18. What harms would a Proposed Rule have for search engines? What evidence do you have or know of that shows these harms?
  19. What benefits would a Proposed Rule have for small businesses? What evidence do you have or know of that shows these benefits?
  20. What harms would a Proposed Rule have for small businesses? What evidence do you have or know of that shows these harms?
Request to Participate:

The Attorney General, at his full discretion, may choose to hold meetings in-person or electronically regarding responses to comments either in an individual or group format. Please indicate whether you would like to participate in a meeting should they occur and include the appropriate contact information for whomever the office should contact to schedule such a meeting.

Instructions for Submission:

All comments must be electronically submitted or postmarked by 11:59PM EST on August 30, 2020. Electronic submission in text-searchable PDF format to RFC1@ohioattorneygeneral.gov is highly encouraged and preferred. Hard mail can be sent to Ann Yackshaw, 30 E. Broad Street, Floor 16, Columbus, OH 43215.

Comment shall reflect the corresponding number to which they are responding to for reference. General comments that do not specifically correspond with one of the above questions will also be accepted.

Please note that your submission and all information contained therein is considered public record. All comments will be posted on the Ohio Attorney General’s website on or before September 11, 2020 for a period of no less than 30 days.

UPDATE: Click here for comments received.