Intoxication, Addiction and the Criminal Law Conference Position Document

On 13-14th January 2018, the Sussex Crime Research Centre (CRC) and Sussex Addiction Research and Intervention Centre (SARIC) hosted a major conference titled Intoxication, Addiction and the Criminal Law. The conference brought together international experts from across law, philosophy and neuroscience to discuss intoxicated and/or addicted offenders. In particular, the aims of the conference were 2-fold: 1) to consider and critique existing laws relating to intoxicated defendants (Ds) who cause harm, but lack criminal ‘mental fault’ at the time they cause harm due to their state of intoxication, and 2) to explore and evaluate potential routes to law reform in this area. The following ‘position document’ focuses on the legal questions relating to intoxicated harm-causing. The aim of the document is to reflect discussions and debates from the conference and to highlight points of consensus.

Contributors (listed alphabetically): Prof A. Badiani (University of Sussex, UK); Dr J.J. Child (University of Sussex, UK); Dr H. Crombag (University of Sussex, UK); Prof V. Curran (University College London, UK); Prof J. Dalley (Cambridge University, UK); Dr S. Demetriou (University of Sussex, UK); Dr R. de Visser (University of Sussex, UK); Prof S. Dimock (York University, CA); Prof A. Duff (University of Stirling, UK); C. Duffy (Magistrate, UK); Prof D. Duka (University of Sussex, UK); I. Dulcu (University of Sussex, UK); Prof R. Fortson QC (Queen Mary, University of London and 25 Bedford Row, UK); Prof M. Gur-Arye (The Hebrew University of Jerusalem, ISR); G. Higgins (9 Bedford Row, UK); D. Hughes (Formerly of the Law Commission of England and Wales, UK); Prof D. Husak (Rutgers University, USA); Q. Jahangir (University of Sussex, UK); Prof R. Mackay (De Montfort University, UK); Prof S. Marshall (University of Stirling, UK); Dr K. Oorsouw (Maastricht University, NL); Prof P. Robinson (University of Pennsylvania, USA); N. Sinclair-House (University of Sussex, UK); Prof D. Stephens (The University of Sussex, UK).

 

Contents:

1.     The Current Law: Outline and Critique;

2.     Alternative Approaches;

3.     Areas for Further Study.

 

  1. The Current Law: Outline and Critique

Discussion at the conference focused on the approach to intoxication outlined in Majewski,[1] developed in England and Wales, and applied (with some variation) across much of the common law world, including parts of Australia, Canada and USA. The current law operates in the following manner:

 

Example of intoxicated harms Approach within the current law
I. D commits a criminal offence, with the appropriate mental fault (such as intention or recklessness), but claims she only did so because of her intoxicated state. D’s intoxication is irrelevant to her liability (but may be relevant at sentencing). This is the case regardless of whether her intoxication is voluntary or involuntary.[2]
II. D becomes intoxicated in order to commit an offence (eg, murder). At the point of completing the physical element of the offence (eg, killing) D lacks an element of mental fault (eg, intention to kill) due to intoxication. D will be liable for the offence (eg, murder) regardless of the missing mental element. This will be the case whether the offence is legally classified as one of basic/general intent or specific intent.[3]
III. D becomes intoxicated involuntarily, or through the voluntary consumption of a non-dangerous drug.[4] D then completes the physical element of an offence (eg, killing) without the mental element (eg, intention or recklessness). D will not be liable for any offence for which she lacks a mental element.
IV. D becomes voluntarily intoxicated with a dangerous drug (eg, alcohol). D then completes the physical element of an offence (eg, killing) without the mental element (eg, intention or recklessness). The law distinguishes between offences of basic/general intent (eg, manslaughter) and specific intent (eg, murder):

Specific Intent: D will not be liable for the offence (eg, murder) for which she lacks a mental element;

Basic Intent: D will be liable for the offence (eg, manslaughter) regardless of a missing mental element.

 

Criticisms were highlighted and discussed as to almost every aspect of the current law. With reference to the separate cases above, these include:

  1. Potential overcriminalisation – particularly where D’s intoxication is involuntary and does not demonstrate a defect of will (as was arguably the case in Kingston).[5]
  2. ‘Special’ intoxication rules may not be necessary – where D becomes intoxicated in order to commit an offence, it may be possible to identify the conduct element of the offence in her act of becoming intoxicated, linking this to the later harms through standard causation principles. The same may be possible where D is reckless as to losing capacity and committing a recklessness-based offence.[6]
  • Voluntary/Involuntary and Dangerous/Non-Dangerous distinctions are problematic – both from legal and neuroscientific perspectives.
  1. It is here that the intoxication rules become most problematic, first because there is no settled distinction between offences of basic/general and specific intent,[7] and second because there is no agreed conceptualisation of how the intoxication rules apply to find liability in the context of basic/general intent offences.
    • The intoxication rules do not apply as a defence, although this is the most common label employed by courts and within codes. Where D commits all elements of an offence (Example I), the rules are irrelevant to liability; they only become relevant as an inculpatory tool for the prosecution where mental fault is otherwise absent (Example IV).[8] Inaccurate labelling here can impact substantive outcomes.[9]
    • Describing the intoxication rules as evidential is also problematic. If this were the case, in the context of basic intent offences, we would need to justify rules of evidence that allow a jury to find the presence of mental fault beyond reasonable doubt despite the court knowing that such fault was absent.[10]
    • Describing the intoxication rules as substantively inculpatory for basic/general intent offences has become more common within academia. However, understood in this way, the rules are difficult to justify. How can we say that a decision to become intoxicated at time 1 (t1), which may be no worse than negligent, is equivalent to missing (subjective) mental fault when causing harms at time 2 (t2)?[11] The current rules therefore risk considerable over-criminalisation and/or inappropriate labelling and punishment.

 

Conference Position: It is agreed that the current law is in need of review and reform.

 

  1. Alternative Approaches

Several alternatives to the current intoxication rules were discussed. These included:

Abolition without replacement: Under this approach D would only be liable for an offence where she acts with both physical and coinciding mental fault. Where mental fault is lacking, even when due to voluntary intoxication, no liability can follow. This accords with basic criminal law principles, but may be perceived as unduly lenient on those who cause serious harms when intoxicated.[12]

Focus on fault at t2: This approach recognises that D does not have subjective mental fault (due to intoxication) when causing the external harms at t2, but asks whether and to what extent those harms nevertheless demonstrate a potentially criminal defect of will.[13] Locating fault at t2 avoids considerably complexities and problems with tracing or substituting fault from t1 (when D becomes intoxicated), but the central role of ‘defect of will’ requires precise elucidation – an elucidation that does not derive from conduct or fault at t1.

Focus on fault at t1: This approach bases potential criminal liability on D’s decision to become intoxicated, foreseeing the risk of future harms, where such harms arise in fact. This includes subjective foresight of future harms, as well as potentially objective foresight (that a ‘reasonable person’ would have foreseen the harms) or a rebuttable presumption of foresight.[14] Focusing on t1 allows us to assess D’s mental fault at a time she is not affected by intoxication, but depending on what fault is required the approach risks over-criminalising (where objective fault substitutes for missing subjective fault) and/or under-criminalising (where D does not have foresight, but later causes considerable harms).

A new intoxication offence: This approach abolishes the current intoxication rules and replaces them with a new offence of voluntary intoxication + harm. The new offence can be designed to target only certain serious intoxicated harms and will allow for more accurate labelling and punishment.[15] However, any new offence must still locate and clarify requirements across t1 and t2, as well as explain a rational (perhaps causal) relationship between them. The offence must also be drafted in a manner that is clear and practical for court application.[16]

 

Conference Position: It is agreed that a review of intoxication and the criminal law should take place across two stages – (1) Identifying cases that may be dealt with using current criminal offences, and exploring rules of causation, coincidence and/or other devises to make this possible; and (2) Identifying possible cases that fall outside this group, but should nevertheless face criminalisation through a potential new offence.

 

  1. Areas for Further Study

For the law in this area to be usefully reformed, it was agreed that the following questions require particular attention and/or further study:

  • Can/Should we ever construct fault on the basis of popular perceptions, and often misconceptions, about drugs and/or intoxication? This may arise, for example, where it is popularly believed that a certain drug will lead to a risk of uncontrolled violence, but this is not supported by the scientific evidence. Should/Could scientific knowledge about underlying mechanisms of drug actions on neurobiology, cognition and/or behaviour (ie, how drugs affect function) provide better (causal) understanding of the relationship(s) between drugs, intoxication and criminal offending, beyond mere population-level, correlational evidence?
  • How (if at all) does scientific understanding of how drug intoxication and addiction affect behaviour and cognition[17] translate to legally relevant constructs, specifically in relation to determinations of criminal liability?
  • Can (neuro)scientific understanding provide a basis for legal distinctions between dangerous and non-dangerous drugs, or voluntary and involuntary intoxication? What is the relevance of drug-drug interactions, medicinal and diverted drug use, impact of co-morbid disease conditions?[18]
  • If D is to be held liable for a crime of recklessness at t2 (when D was not aware of the relevant risk of harm), on the basis of her awareness of the risks in becoming voluntarily intoxicated at t1, what kind of awareness should be required? Must D have been aware at t1 of a risk that she might cause the very kind of harm that he in fact caused at t2?
  • If fault is to be ascribed to D at t1 in the absence of subjective foresight of future dangers/harms, what objective criteria can/should be employed to identify that fault? For example, the statistical likelihood of harm resulting; the common knowledge of such risks; the level or circumstances of intoxication; or a combination of these factors?[19]
  • Where potential liability is constructed across conduct and fault at both t1 and t2, how can we understand and demonstrate the connection between these two points in time? Must we, for example, prove that D’s conduct at t1 caused her conduct at t2?
  • What difference (if any) does/should it make if D’s intoxication arises partly as a result of addiction? In cases of this kind, we could conclude that the addiction mitigates D’s ‘choice’ to become intoxicated (but if so, we need to know how such mitigation would operate), or that a blameworthy choice can be traced back to the origins of D’s addiction (but if so, we need to know how closely such origins will be investigated). Is there scientific consensus about how drug abuse and addiction could affect ‘choice’ in becoming intoxicated and wider decision making in relation to criminal offending? How do we consider genetic and phenotypic predispositions (e.g. impulsivity) to addiction and the complex interactions of ‘set and setting’ in determining drug intoxication and addiction susceptibility?[20]
  • What are the main difficulties faced by advocates applying the current intoxication rules, and what problems arise from law reform? This is particularly important in the context of a potential intoxication offence, where previous reform proposals have faced considerable opposition from the profession.
  • What is the judicial attitude toward intoxicated harm-causers, and towards the current legal response? Research in the area of diminished responsibility may be useful here.
  • How do members of the public understand intoxication and the criminal law, and what is their attitude to liability? This question is relevant to the communicative function of the criminal law (are current potential liabilities known?), as well as its normative future (when do people think that intoxicated harm-causing should become a criminal wrong?).
  • To what extent do/should the same prior-fault principles at play in relation to intoxication also operate in relation to automatism and certain cases of insanity? Where we see overlap, should we explore the potential for a consistent and/or single approach to reform?[21]
  • What can we learn from approaches to intoxicated harms in other countries, particularly from civil law jurisdictions? Civil codes often include intoxication offences for example.[22]

[1] [1977] AC 443.

[2] Kingston [1994] 3 All ER 353.

[3] AG for NI v Gallagher [1963] AC 349.

[4] Where D consumes a drug that the court considers non-dangerous (eg, sleeping pills) but suffers an unexpected reaction leading to harmful conduct, the intoxication will be treated (in effect) as if it were involuntary.

[5] [1994] 3 All ER 353. See, Husak, ‘Intoxication and Culpability’ (2012) Crim L & Phil 363.

[6] Robinson, ‘Causing the Conditions of One’s Own Defence: A Study in the Limits of Theory in Criminal Law Doctrine’ (1985) Vir LR 1; Child, ‘Prior Fault: Blocking Defences or Constructing Crimes’ in Reed and Bohlander (eds), General Defences (2014) 37.

[7] Law Commission, Intoxication and Criminal Liability (Law Com 314, 2009).

[8] Dimock, ‘What are Intoxicated Defendants Responsible For? The “Intoxication Defense” Re-Examined’ (2010) Crim L & Phil 1; Simester, ‘Intoxication is Never a Defence’ [2009] Crim LR 3.

[9] Shain & Higgins, ‘The Intoxication Defense and Theories of Criminal Liability: A Praxeological Approach’ (1997) Contemporary Drug Problems 731.

[10] Simester, ‘Intoxication is Never a Defence’ [2009] Crim LR 3.

[11] For one of the few attempts to justify this, in proposals that were rejected by Government, see Law Commission, Intoxication and Criminal Liability (Law Com 314, 2009); Child, ‘Drink, Drugs and Law Reform’ [2009] Crim LR 488.

[12] Mackay, ‘The Taint of Intoxication’ (1990) Int J Law & Psy 37; Gough, ‘Surviving Without Majewski’ (2000) Crim LR 719.

[13] Husak, ‘Intoxication and Culpability’ (2012) Crim L & Phil 363.

[14] Robinson, ‘Causing the Conditions of One’s Own Defence: A Study in the Limits of Theory in Criminal Law Doctrine’ (1985) Vir LR 1; Dimock, ‘What are Intoxicated Defendants Responsible For? The “Intoxication Defense” Re-Examined’ (2010) Crim L & Phil 1; Dimock, ‘Actio Libera in Causa’ (2013) Crim L & Phil 549.

[15] Law Commission, Intoxication and Criminal Liability (Consultation 127, 1993); Child, ‘Prior Fault: Blocking Defences or Constructing Crimes’ in Reed and Bohlander (eds), General Defences (2014) 37.

[16] Having been proposed in their 1993 CP (ibid), this approach was rejected in Law Commission, Intoxication and Criminal Liability (Law Com 229, 1995).

[17] Sanchez-Roige, Stephens, and Duka, ‘Heightened impulsivity: associated with family history of alcohol misuse, and a consequence of alcohol intake’ (2016) Alcohol Clin Exp Res 40(10); Curran, Freeman, Mokrysz, Lewis, Morgan, Parsons, ‘Keep off the grass? Cannabis, cognition and addiction’ (2016) Nat Rev Neurosci  17(5); van Oorsouw, Merckelbach and Smeets, ‘Alcohol intoxication impairs memory and increases suggestibility for a mock crime: a field study’ (2015) Appl Cogn Psychol, 29(4).

[18] Curran, Freeman, Mokrysz, Lewis, Morgan and Parsons,’ Keep off the grass? Cannabis, cognition and addiction’ (2016) Nat Rev Neurosci 17(5).

[19] Dingwall, Alcohol and Crime (Devon, Willan Publishing, 2006).

[20] Jupp and Dalley, ‘Behavioral endophenotypes of drug addiction: etiological insights from neuroimaging studies’ (2014) Neuropharm 76; Badiani, ‘Substance-specific environmental influences on drug use and drug preference in animals and humans’ (2013) Curr Opin Neurobiol 2.

[21] Mackay, ‘The Taint of Intoxication’ (1990) Int J Law & Psy 37; Child & Reed, ‘Automatism is Never a Defence’ (2014) NILQ 167; Child & Sullivan, ‘When Does the Insanity Defence Apply? Some Recent Cases’ [2014] Crim LR 787.

[22] Gur-Arye, Actio Libera in Causa in Criminal Law (Jerusalem, 1984).

Note: The conference and this position document are feeding into a reform focused project to be taken forward by conference organisers John Child and Hans Crombag with Rudi Fortson QC. For more information on this project and/or to share your views, please contact H.Crombag@sussex.ac.uk and/or J.J.Child@sussex.ac.uk.  

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New approach to media cases at the Royal Courts of Justice a welcome development

judith
Judith Townend

In 2012 Mr Justice Tugendhat, ahead of his retirement in 2014, made a plea for more media specialist barristers and solicitors to consider a judicial role: “As the recruiting posters put it: Your country needs you.

He emphasised the particular burden of freedom of expression cases, which require judges, for example, to consider the rights of third parties, “even if those third parties choose not to attend court” and to provide reasons for the granting of injunctions at very short notice.

Without expert knowledge of the applicable law, this is no easy task. Fortunately, media law cases have not fallen apart with the respective retirements of Sir Michael Tugendhat and Sir David Eady, and recent specialists to join the High Court include Mr Justice Warby in 2014, and Mr Justice Nicklin in 2017 – both formerly of 5RB chambers.

The arrival of Mr Justice Warby, who was given the newly created role of Judge in charge of the Media and Communications List, has provided a welcome opportunity to propose changes to the procedure of media litigation in the Queen’s Bench Division, where the majority of English defamation and privacy claims are heard.

Since taking on responsibility for the cases involving one or more of the main media torts – including defamation, misuse of private information and breach of duty under the Data Protection 1998 – Mr Justice Warby has spoken about his hopes and plans for the list, and also conducted a consultation among those who litigate in the area, as well as other interested parties.

The consultation considered the adequacy of Civil Procedure Rules and Practice Directions; the adequacy of the regime for monitoring statistics on privacy injunctions; and support for the creation of a new committee.

As a socio-legal researcher rather than legal practitioner, my interest was piqued by the latter two questions.

For some time, I have been concerned that efforts by the Judiciary and the Ministry of Justice to collect and publish anonymised privacy injunction data have been insufficient, and also that the availability of information about media cases could be improved more generally.

My own efforts to access case files and records in 2011-13, to update research conducted by Eric Barendt and others in the mid 1990s, and to interrogate assertions of defamation’s “chilling effect”, proved largely unsuccessful and I was astonished how rudimentary and paper-based internal systems at the Royal Courts of Justice appeared to be.

Although public observers are entitled to access certain documents – such as claim forms – the cost and difficulty in locating claim numbers prohibits any kind of useful bulk research which would allow more sophisticated qualitative and quantitative analysis of media litigation.

I jumped, therefore, at the opportunity of the consultation to raise my concerns about the injunctions data, and to support the creation of a new user group committee.

My submission, with Paul Magrath and Julie Doughty, on behalf of the Transparency Project charity, made suggestions for revising the injunctions data collection process, including the introduction of an audit procedure to check information was being recorded systematically and accurately.

Following the consultation, Mr Justice Warby held a large meeting at the Royal Courts of Justice for all respondents and other interested parties at which he shared a table of proposals from the consultation, provisionally ranked as “most feasible”, “more difficult” and “most difficult”.

The last category also included proposals which would require primary legislation, which would be a matter for Parliament rather than the Judiciary.

I was pleased that our initial proposals on the transparency of injunctions data have been deemed practical and feasible in the first instance.

Also considered achievable are some of the proposals related to case management and listings, updating the pre-action protocol (PAP), the Queen’s Bench Guide, and civil practice directions in light of developments in privacy, data protection and defamation litigation and press regulation (not least to reflect the Defamation Act 2013).

This meeting also established the creation of a new Media and Communications List User Group (MACLUG) to which a range of representatives have been appointed.

The group comprises members of the Bar and private practice solicitors (including both claimant and defendant specialists), in-house counsel, clerks, and a costs practitioner.

Additionally, I have joined as a representative of public interest groups – i.e. those engaged in academic research and third sector work. The new committee met for the first time at the end of 2017, and members have formed smaller working groups to take forward the “feasible” proposals, which will be discussed with our respective constituencies in due course, and where relevant, eventually proposed to the Civil Procedure Rule Committee to consider.

In a speech to the Annual Conference of the Media Law Resource Center in September last year Mr Justice Warby identified his overall aims for the “big picture” and landscape of media litigation: to resolve disputes fairly, promptly, and at reasonable cost.

All of which were “easier said than done”, in his words. Quite so. But it is right that it should be attempted, and with judicial input where appropriate.

Mr Justice Warby’s efforts to date are to be applauded, and in particular, his open approach in addressing some of the flaws and inconsistencies of current practice, and evaluating structural and systemic issues.

That said, a committee formed by the judiciary is constrained in its remit, quite rightly. The consideration of changes to primary legislation should fall to Parliament.

It is therefore important that media law practitioners and other stakeholders should also work with the Ministry of Justice and HM Courts and Tribunals Service to inform ongoing work on courts modernisation, and push for wider consultation and involvement in reforms. A further challenge is to persuade government and parliamentarians to take on any issues requiring changes to legislation.

Part I of the Leveson Inquiry addressing, in part, the relationship between media proprietors, editors and politicians showed that the process of consultation on public policy affecting the news media has been subject to undue influence by certain private interests, and insufficiently transparent.

To this end, perhaps the new Lord Chancellor and Secretary of State for Justice, David Gauke MP, and the new Secretary of State for Digital, Culture, Media and Sport, Matt Hancock MP, might consider ways in which they can consult more openly and fairly in their development of policy and draft legislation on freedom of expression, reputation and privacy.

Dr Judith Townend is lecturer in media and information law at the University of Sussex and a member of the Queen’s Bench Division Media and Communications List User Group Committee.  This is an edited version of an article which first appeared in Communications Law journal, volume 23, issue 1 (Bloomsbury Professional) and PA Media Lawyer, and the Transparency Project Blog and is re-published here with permission and thanks.

Google Shopping: beware of ‘self-favouring’ in a world of algorithmic nudging

foto zingales
Nicolo Zingales

On 27 June 2017, the European Commission closed its investigation in the Google Shopping case. It found a breach of article 102 TFEU in relation to Google’s “more favourable positioning and display of its own comparison shopping service compared to competing comparison shopping services” (hereinafter, “the conduct”)[1]. The Commission’s Decision is important for several reasons. First and foremost, it constitutes the first application of the leveraging theory in an algorithmic context, where as a result of certain algorithmic design choices[2] a dominant undertaking systematically directs (“nudges”) consumers towards its own goods or services in a secondary market. Google apparently didn’t see it coming, as it argued both in the proceedings before the European Commission and in the appeal it lodged against the Decision[3] that the Commission used a novel theory of abuse, and therefore in accordance with its previous practice should not have imposed a fine. However, the Commission rejected this argument, noting that it had already used a self-favouring theory to establish abuse in a number of cases[4]. It therefore imposed a fine of almost 2.5 billion euros and ordered Google to take adequate measures to bring the conduct to an end, and refrain from repeating it, or engaging in any act or conduct with the same or an equivalent object or effect[5].

 

The divergence of views between Google and the Commission relates to the specificities of the application of leveraging theory (and in particular the so called ‘self-favouring’ abuse) in this particular context. In this short Comment, I acknowledge the peculiarities of algorithmic leveraging and sketch some of the implications of a broad definition of preferential treatment in a world where algorithmic mediation, and to some extent “nudging”, becomes pervasive.

The notion of preferential treatment in Google Shopping

In order to appreciate the Commission’s definition of preferential treatment, it is necessary to make a clarification about the technology under discussion: to provide users with the most relevant results, search engines undertake editorial functions in indexing, triggering, ranking and displaying content. Those choices are made primarily by designing algorithms, i.e. rules that will govern the operation of Google’s crawling, triggering, ranking and displaying technologies to perform the desired process. Because of these editorial functions, algorithms can have in-built biases which lead to systematically favouring certain content, although that may not necessarily be the result of a deliberate choice of the designer. Since the stage of algorithmic design is removed from the generation of results, it is often difficult for the designer to anticipate all the possible consequences. This holds even more true when it comes to machine-learning algorithms, recently incorporated into Google Search[6], that are characterized by the property to automatically learn and improve from experience without being explicitly programmed. The problems of transparency, fairness and accountability of algorithmic systems are so complex and important that they have come to define an entire field of research, much of which focused on machine-learning[7]. They are now an increasing source of headaches for courts and regulators.

Given the challenges in predicting the nature and effects of algorithmic design decisions on the market, it is particularly significant that the Decision condemns a conduct resulting from algorithmic design choices[8]. Taken at face value, this could mean that a dominant company having developed or used an algorithm is strictly liable for any possible anticompetitive effects derived therefrom. Consequentially, it requires the adoption of wide-ranging measures of self-monitoring to ensure compliance by design, which is something that Commissioner Vestager has recently alluded to[9]. However, the Commission provides no guiding principle on how far that compliance framework should go: neither in the substantive part of the decision nor in its remedial order, where it requires Google to ensure equal treatment concerning “all elements that have an impact on the visibility, triggering, ranking or graphical format of a search result in Google’s general search result pages” [10]. While Google may be able to get to a good compromise in the definition of the conduct it is required to adhere to under the remedy[11], we may query what that high-level definition of equal treatment means for future developers of algorithms?

To compound those challenges, it is worth noting the Decision does not specify a threshold of materiality for differential treatment by a dominant company to fall foul of Article 102. The Commission presents data showing that the conduct in question is sufficiently capable (a threshold that is notably lower than likelihood[12]) of driving competitors out of business, reducing incentives to innovate and consumer choice, and leading to higher prices[13]. To supplement its findings, it puts forward some colorful evidence of intent by the concerned undertaking to favour its own services over those of competitors in order to leverage its position in general search into the market for shopping comparison services[14]. Regrettably, however, the line between permitted and prohibited conduct is rather blurred, as nowhere in the Decision does the Commission detail what amounts to preferential treatment, other than stating that it involves the application of different standards for ranking and visualization to Google Shopping than to other comparison shopping services.

Most notably, the Decision begs the question of whether a dominant undertaking remains free to set up its ranking and selection (“triggering”) criteria, so long as those are applicable indistinctively both to its products and services and to those of its competitors. The Commission seems to gloss over those details, affirming that “[it] does not object to Google applying certain relevance standards, but to the fact that Google’s own comparison shopping service is not subject to those same standards as competing comparison shopping services[15]”. This leaves us with the suspicion that a dominant undertaking such as Google could in fact be found liable for designing its algorithms in a way that leads to a disparate impact on a given class of competitors (or in the case of the implementation of the remedy, its competing comparison shopping services), despite the indiscriminate application of those algorithms to all products and services.

However, a blanket prohibition of self-favouring formulated in these terms would be likely to impose a disproportionate burden on a range of undertakings, if not accompanied by some limiting principle: much like a dominant company’s indiscriminate conditions of sale may lead to refusal to supply in violation of Article 102 when it fulfills the specific conditions established in Bronner[16], an algorithm with indiscriminate application but disparate impact on competitors should be held in violation of Article 102 only if it meets specific requirements serving as proxy of consumer harm. To be clear, this is not a call for the application of the Bronner conditions, which is unsurprisingly invoked by Google, but rather a recognition that the Commission would be well advised to narrow the net it casts to catch anticompetitive conduct perpetrated through algorithmic nudging. Perhaps one could take the Commission’s emphasis on the “active” nature of the refusal to grant competitors access to a proportion of its general search result pages (in the sense of exempting Google Shopping from demotions and “hardcoding” its position in the ranking)[17] to mean that the use of certain types of instructions or criteria would be considered “passive” refusal, and therefore escape the prohibition. However, this distinction necessitates further elaboration. In the absence of clarifications on the constitutive elements of the self-favouring abuse, the extent of antitrust deference towards the design of “relevance standards” for ranking and selection algorithms is nebulous, and therefore problematic for investment and innovation[18].

Transparency is important, but not enough

Another piece of the puzzle in understanding the Commission’s stance towards algorithmic design is its concern for transparency as a means of protecting both market players and final consumers in their interactions with a dominant company. First, the Decision highlights the ample discretion to remove or demote websites retained by Google in its Webmaster Guidelines, where the company warns against certain identified practices but also reserves the right to “respond negatively to other practices not listed[19]”. Second, it recognizes that only a fraction of Google’s users (“the most knowledgeable users”) is likely to take the “Sponsored” label to mean that different positioning and display mechanisms are used for the corresponding search results[20]. It is worth noting that the Decision does not provide empirical support for the latter position, and that this specific issue was at the core of the Dissenting Opinion to the recent Indian Competition Commission’s Decision finding that Google leveraged its dominant position in general web search to favour its own flight comparison service (Google Flights) over competing ‘travel verticals’[21]. Nevertheless, these statements indicate that an important element of the Commission’s condemnation of the conduct lies in the opaqueness of Google’s prioritization and/or penalization practices, which affects the structure of competition in the market for shopping comparison services.

One may therefore expect that the transparency and intelligibility of algorithmic practices will play a role in determining the scope of differential treatment that may be caught under Article 102. However, even admitting the relevance of those considerations, it remains to be seen the extent to which those can serve as defense to a self-favouring allegation. One could argue, for instance, that Google should not be allowed to escape scrutiny by making it crystal clear that its search services systematically prioritize content coming from domains starting with “Goo”, or pages displaying its official logo. Condoning such conduct would run counter to the antitrust doctrine rejection of formalism, including the established principle that an abuse of dominant position is prohibited regardless of the means and procedure by which it is achieved[22]. Following this argument, the fact that Google has come consistently on top of the auctions run for its Shopping Unit slots as part of its remedial measures[23] should at least raise some eyebrow about the adequacy of those measures, highlighting the importance of the link with a clear and consistent definition of the abuse in question.

Towards a negligence-based safe harbor for impactful algorithms?

The main criticism of this Comment is that the Commission must look harder into the criteria underlying algorithmic design. Attributing strict liability for any algorithmic conduct that is capable of affecting competition is extremely far-reaching. What is needed is thus a limiting principle, for example in the guise of a ‘safe harbour’, that provides legal certainty for undertakings offering ranking and selection algorithms. A safe harbour could rely on conditions similar to those set out by article 14 of the E-commerce directive, which grants a content host immunity from liability under European law for the information stored provided that: “(a) it does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; and (b) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information” [24]. Those conditions could then be used to design, with appropriate institutional and procedural safeguards, a framework of ‘notice and re-adjustment’ of disproportionately and unjustifiably affected competitors. Additionally, the Commission could ensure that a dominant company is not negligent by prescribing a due diligence procedure for the design of algorithms that can effectively impact consumer choice through the selection or ranking of content. Such procedure could for instance rely on established techniques to detect the existence of bias[25], maintain a record of that testing for inspection by a competition or judicial authority, and even define a threshold of adverse impact warranting a change of the existing rules or criteria. While algorithmic accountability is a regulatory challenge that is here to stay, the global antitrust community has a responsibility to clarify the scope of the nascent antitrust duty to police one’s own algorithm. This should aim to ensure a sufficient protection against unfair manipulation (a task shared with consumer and data protection authorities), but without undermining the incentives to invest and innovate in algorithmic technologies.

[1] European Commission, Case AT.39740 , Brussels, 27.6.2017, C(2017) 4444 final. Available at http://ec.europa.eu/competition/antitrust/cases/dec_docs/39740/39740_14996_3.pdf (hereinafter, “Decision”).

[2] By “design choices”, I refer here to the rules and criteria embedded in the algorithm, including any subsequent changes or “updates” (as they are typically called in the context of Google search). Further, I am using a specific notion of algorithm, as a set of mathematical instructions to provide gatekeeping services.

[3] See Case T-612/17, Action brought on 11 September 2017 – Google and Alphabet v Commission, OJ C 369, 30.10.2017, p. 37–38.

[4] Decision, para. 649, referring to Case 311/84, Télémarketing, EU:C:1985:394; Case C-333/94 P, Tetra Pak II, EU:C:1996:436; Case T- 228/97, Irish Sugar, EU:T:1999:246; Case T-201/04, Microsoft, EU:T:2007:289. It bears noting that the case-law suggests that self-favouring may be caught as a manifestation of various types of conduct prohibited by article 102: see in this regard Nicolas Petit, ‘Theories of Self-Preferencing Under Article 102 TFEU: A Reply to Bo Vesterdorf’ (April 29, 2015). Available at SSRN: https://ssrn.com/abstract=2592253 or http://dx.doi.org/10.2139/ssrn.2592253. See also the Decision by India’s Competition Commission in Cases Nos. 07 & 30 of 2012, Matrimony.com v Google LLC, Google India and Google Ireland, available at http://www.cci.gov.in/sites/default/files/07%20%26%20%2030%20of%202012.pdf (finding that Google’s leveraging amounted to an imposition of unfair conditions in the purchase or sale of goods or services, in contravention of Section 4 (2) (a) (i) of the Competition Act).

[5] Decision, Art. 2-4.

[6] Cade Metz, ‘AI Is Transforming Google Search. The Rest of the Web Is Next’, Wired (2 April 2016). Available at https://www.wired.com/2016/02/ai-is-changing-the-technology-behind-google-searches/.

[7] See for instance the annual conferences on Fairness, Accountability and Transparency (FAT) and on Fairness, Accountability and Transparency in Machine Learning (FATML), at https://fatconference.org and https://www.fatml.org/.

[8] In some instances, the preferential treatment ostensibly results from the criteria generating a given algorithmic result. A good example is the “signals” for triggering the appearance of Product Universal, and/or its appearance in the middle to top position of the results in the first page: the number of stores and the number of shopping comparison engine in the top-3 generic search results. Decision, para. 391. In other parts of the Decision, however, the Commission merely takes issue with the exclusion of Google Shopping from the application of certain criteria that adversely affect the position of competing price comparison services (notably the […] and Panda algorithms). See Decision, para. 512.

[9] Margarethe Vestager, ‘Algorithms and competition’, Speech at the Bundeskartellamt 18th Conference on Competition, Berlin, 16 March 2017. Available at https://ec.europa.eu/commission/commissioners/2014-2019/vestager/announcements/bundeskartellamt-18th-conference-competition-berlin-16-march-2017_en

[10] The only limit it provides in that respect, presumably reflecting the feedback received in the ‘market-testing’ of the commitments offered to Commissioner Almunia in 2013 and 2014, is that any measure chosen by Google to comply with the order “should not lead to competing comparison shopping services being charged a fee or another form of consideration that has the same or an equivalent object or effect as the infringement established by this Decision”. Decision, para. 700.

[11] As a measure implementing the remedy, since 28 September 2017 Google shifted its shopping operations into a separate entity, with other companies now able to bid for places in the Shopping Units. Furthermore, each ad in the Shopping Unit indicates which comparison service is providing it. However, it has been reported that as many as 99% of those Shopping results are held by Google. See Searchmetrics, ‘Google Shopping: Is the Revamped Comparison Service Fairer to Competitors?’ (29 January 2018), at https://blog.searchmetrics.com/us/2018/01/29/google-shopping-revamped-fairer-to-competitors/. See also Sam Schechner and Nathalia Dozdriak, ‘Google Rivals Ask EU to Toughen Measures in Antitrust Case’, Wall Street Journal (30 January 2018). Available at https://www.wsj.com/articles/google-rivals-ask-eu-to-toughen-measures-in-antitrust-case-1517334038

[12] The Commission can find support for “capability” in a series of cases, many of which are listed in the Decision at para. 602; Case C-52/09, Konkurrensverket v TeliaSonera Sverige AB, EU:C:2011:83, para. 64; Case C- 549/10 P, Tomra Systems and Others v Commission, EU:C:2012:221, para. 79; Case T-336/07 Telefónica SA v Commission, EU:T:2012:172, para. 272, upheld on appeal in Case C-295/12 P, EU:C:2014:2062, para. 124; Case C-23/14 Post Danmark, EU:C:2015:651, para. 66; see also Case T-286/09, Intel v Commission, ECLI:EU:T:2014:547, para. 85, on this specific point confirmed on appeal in Case C-413/14, ECLI:EU:C:2017:632, para.149.

[13] Decision, paras. 594-597.

[14] In particular, the Commission found in internal documents that the Google’s Engineering Director responsible for Froogle, the previous version of Google Shopping, stated that “Froogle stinks” and warned that “(1) [t]he [Froogle] pages may not get crawled without special treatment; without enough pagerank or other quality signals, the content may not get crawled. (2) If it gets crawled, the same reasons are likely to keep it from being indexed; (3) If it gets indexed, the same reasons are likely to keep it from showing up (high) in search results […] We’d probably have to provide a lot of special treatment to this content in order to have it be crawled, indexed, and rank well”. Decision, para. 491.

[15] Id., para. 440 (emphasis added). By choosing to use the word ‘certain’, the Decision suggests that the use of certain other criteria may be problematic. This hypothesis appears to be confirmed by para. 537, according to which “the Commission does not object to Google applying specific criteria per se but to the fact that Google prominently positions and displays results only from its own comparison shopping service and not from competing comparison shopping services” (emphasis added).

[16] Namely, that the facility that is the object of refusal is indispensable to compete on a downstream market, and that refusal is not objectively justified. See Oscar Bronner GmbH & Co. KG v. Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG, Case C-7/97, 1998 E.C.R. I-7791, [1999] 4 C.M.L.R. 112.

[17] Decision, para. 650.

[18] For a useful mapping of types of deference towards design choices, see Stacey Dorgan, ‘The Role of Design Choice in Intellectual Property and Antitrust Law’, 15 Columbia Technology Law Journal 27 (2016).

[19] Decision, para. 347.

[20] Id., paras. 536 and 599.

[21] Cf. Matrimony.com Decision, supra note 4, para. 248; and Dissenting Opinion, paras. 5-6.

[22] Id., para. 338; Case 6/72, Europemballage and Continental Can v Commission, EU:C:1973:22, paras. 27 and 29; Case T-128/98, Aéroports de Paris v Commission, EU:T:2000:290, para. 170.

[23] See supra, note 11.

[24] See Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, OJ L 178, 17.7.2000, p. 1–16. Applying these conditions to the Commission’s reasoning, they could be used to give content to the notions of “active” and “passive” conduct mentioned at para. 650: see supra, note 17.

[25] See Christian Sandvig et al. ‘Auditing Algorithms: Research Methods for Detecting Discrimination on Internet Platforms’, Data and discrimination: converting critical concerns into productive inquiry (2014), 1-23.

Nicolo Zingales is a Lecturer in Competition and Information Law at the University of Sussex. This piece first appeared on Competition Policy International’s Europe Column for February 2018.