The Internet connects everyone around the world. From the legal aspect, it’s hard to have certain jurisdictions take all the controls to enforce the rules, due to the transnational dimension of the Internet. This is the reason why multi-stakeholder participation is very important for Internet governance, with highlighted importance of diversity. One of the ambassadors shares the case study of algorithm bias during the training, which got me to think that the internet has become the primary venue for multinational corporations to promote their contents, leading to suppression of diversity.
- Presentation of online search results
From the viewpoint of law, companies’ brands can be protected via trademark or domain name in the era of the Internet.
To be eligible for trademark protection, the brand should have “distinctiveness,” meaning the consumer can relate the specific brand to a specific source of the goods or services. There are two kinds of distinctiveness: inherently distinctive and secondary meaning.
Secondary meaning is referred to as those common words used in our daily life or link to the designated goods or services that usually will not constitute distinctiveness but may gradually obtain it via extensive use. For example, “amazon” and “apple”. It is because amazon is originally referred to as the rainforest in South America while apple is referred to a kind of common fruit. Those words are commonly used in daily life and are usually ineligible for trademark unless obtaining secondary meaning.
When we use online search tools, the keyword we use is often relevant to trademark or domain name. Concerning how the results are presented, studies show that over than 90% of online users only read the search results from the first page with the first five results accounting for almost 70% of clicks while the second page clicks accounting for less than 6% of all website clicks. This kind of user tendency is much more significant when using portable devices with smaller screens, such as cellphones or tablets. That is, the majority only check out the results of the first five or just the first page among millions of search results. In this regard, how the internet shows the contents of search results is essential to the public’s right to information and further closely connected to freedom of expression.
- Where is our rainforest Amazon and fruit Apple?
A few years ago, an e-commerce corporation Amazon was engaged in cross-border legal disputes around the world regarding the right to use the domain name “.amazon.” Eight South American nations, including Brazil, Peru, Colombia, Ecuador, Bolivia, Venezuela, Guyana, and Suriname, concerned about a corporation taking control of “amazon” synonymous with their cultural and natural heritage, for the name itself contains not only business implication but also emotional value.
On the other hand, from the viewpoint of Amazon corporations, the domain name is highly correlated with trademarks as well as commercial activities by its nature and the governments didn’t apply for the domain name “.amazon”. A similar issue arose concerning the domain name dispute of “.Patagonia” between the clothing company Patagonia, Inc. and the government of Argentina and Chile. These further presents a difficult question about how to enable the public to access different online content, specifically about what kinds of contents the internet should cover and who has the right to decide.
Nowadays, when typing in “amazon”, we can see that all the contents shown on the first page are all relevant to online shopping instead of rainforest (figure 1).
Figure 1: Search result of keyword “amazon” on Feb. 23, 2020
This kind of diversity oppression driven by commercial incentives can also be seen from apple. When typing in “Apple,” we will not see any contents relevant to the healthy fruit apple. Instead, we see Apple Inc., iPhone, iPad and other electronic products provided by Apple (figure 2). As stated above, all the users see are mostly the contents provided by multinational corporations and there is hardly a sign for contents unrelated to commerce.
Figure 2: Search result of keyword “apple” on Feb. 23, 2020
- Antitrust issues associated with algorithm used by multinational corporations
Associated issues intertwined with algorithms or trademarks also involve unfair competition. About 3 years ago, Google was fined by European Commission for unfair competition, for it abused its dominance as the search engine to give illegal advantage to own comparison shopping service among other competitors.
Google entered the separate market of comparison shopping in 2004 in Europe. Its performance was relatively poor until Google implemented different strategies from 2008, such as (1) systematically giving prominent placement to its own comparison shopping service; and (2) demoting rival comparison shopping services in its search results.
As mentioned before, the presentation of search results is highly connected to the public’s accessibility to certain information. Google, as the biggest search engine in Europe, used its dominance in the search engine market to display the contents of its own comparison shopping service at the top of the search results, thus gaining more exposure in the online search to have better competition in comparison shopping service market.
- Public interests versus commercial incentives on the internet
All the examples listed above are just the tip of the iceberg. Many search results have their own limitation as to how and what to include. Apart from algorithm issues, abusing online advertising can also influence the public’s accessibility to information.
There might be its own business implication on each domain name. However, as the various stakeholders could access the information on the Internet, policy-makers should also take into considerations all the aspects influencing diversity in the online content, including user diversity and content diversity to respect people, culture, history, ecology, etc.
Some may argue that the reason for such a phenomenon is because users seldom search for the rainforest Amazon or the ordinary fruit Apple. It should be noted that given the different stakeholders involved in the cross-border online activities, it is vital that online search results should not simply neutrally present the results. Rather, it should also actively provide diversified contents to foster freedom of speech since the public’s right to information is crucial to exercise freedom of speech without being forced to accept one certain type of belief regardless of the majority opinion.
As for reasonable and diligent users of online search, we should be aware of how the internet works, what the issues may be and why there are such issues, including algorithm bias and limitation as well as contractual relations or abuse of market dominance between the stakeholders in the internet. Hopefully, we will eventually find a better balance between the public interests and commercial incentives in the internet.
About the writer
Rebecca Lin (NetMission Ambassador 2019/20, Taiwan)
Master’s Degree in Law, National Taiwan University