New UK regulation has prompted Google to roll out global changes to the way it uses publisher content in AI-written answers. But do the new rules go far enough?
Publishers and press groups have already warned that the new Competition and Markets Authority regime will be too slow and may offer ways for Google to wriggle out of its obligations.
Press Gazette put publishers’ concerns to the UK civil servant in charge of regulating Google: Will Hayter, executive director for digital markets at the CMA.
He has 20 years experience working in competition policy, first at Ofcom and then at the Competition and Markets Authority. He has been working at the Digital Markets Unit since its inception in 2021. Under legislation passed by Rishi Sunak’s Conservative government, the DMU is empowered to ensure that the giant tech platforms “trade on fair and reasonable terms” in the UK.
PG: The Professional Publishers Association is among those voicing concerns that the new regime offers publishers a binary choice over whether or not their content will feature in Google’s AI products. Why isn’t the proposed level of control more granular?
Will Hayter: “What we are including is not just site-level controls, but page-level controls, so that actually there is a significant degree of granular control for publishers…
“We heard the push for publishers to be able to choose to keep their content in AI Mode, or remove it from AI Overviews, or vice versa. We have to satisfy ourselves in putting any requirements like this in place that it’s both effective and proportionate… we didn’t think it was necessary, essentially, to have the effect we want, which is to get to this position where you’ve got more effective negotiations going on between publishers and Google.”
Why do publishers have to opt out of allowing Google to use their content for AI? Shouldn’t they be opted out by default?
“I think this opt-in, opt-out point is a bit of a red herring in this context…
“In a more consumer setting, we’re all familiar with the importance of defaults and the risk that consumers have, by default, opted into whatever the terms and conditions might be in a particular environment…
“But here we’re talking about very engaged businesses looking after their own business interests… so I find it a bit hard to believe that they can’t take advantage of an opt-out scenario.
“It’s up to Google to decide to put forward how they plan to comply with the control, and that could, in principle, be opt-in or opt-out.”
This could all take many months to kick in. The Movement for an Open Web said we may not know until the end of 2027 whether this is actually working. Why aren’t the new rules immediately binding?
“I think we’re going to see positive results much more quickly than some commentators have interpreted…
“The implementation deadline for most of the control is six months… we think it’s quite likely that the implementation of important parts of the control will happen quicker than six months…
“I think it’s not surprising to find that in terms of a regulatory requirement, you put the requirement in place, and then where there is this kind of engineering effort, there is a period in which the company concerned has time to do the engineering and the testing and so forth to get this into place. I think that seems pretty reasonable.”
What is the compliance regime going to look like? How frequently will Google provide you with reports?
“We are expecting compliance reports six-monthly in the first year, and then after that yearly, but that’s just one element of our compliance and monitoring effort…
“We’ll be doing a lot of other work in parallel and a lot of the value of this control is in supporting more effective negotiations between publishers and Google…
“It’s completely open to us to be making formal information requests of Google on specific issues outside those formal compliance reports, and then we will also expect to be talking pretty constantly to publishers as we go along as well to hear their side of the story of how those negotiations are going.”
What does a good outcome from all this look like in 18 months’ time?
“The overall principle here is that what we want to see is a fair exchange of value between platforms in general and content businesses…
“In Google’s case, that fair exchange has been prevented by the fact that publishers haven’t been able to opt their content out of AI search features without losing access to search traffic, so that obviously changes from today, because it creates the ability for content businesses to opt out of the AI search features.
“We’re expecting to see the greater transparency that we’re requiring from Google… the data that Google will be required to supply is not just impressions, it will also be clickthroughs, and we’re also going to be requiring Google to share sufficient data that the publishers are able to get a sense of click quality, which Google itself says is an important aspect of all of this.
“So that means that publishers will need to be able to understand whether a clickthrough that they receive is a result of an AI Overview or the standard search results or AI Mode, so you should see that there is much better data flow and transparency for publishers.
“There’s also the attribution obligation as well, where Google is going to be required to take the steps to ensure that content is attributed clearly and accurately, and that people are able to click through to the underlying content…
“Google’s going to have to publish information explaining how it does that attribution and how it ensures factuality. So, overall, we’re expecting to see more effective negotiations, but actually just a greater degree of transparency overall, both for publishers and for end users.”
Google is a £20bn a year business in the UK and publishers are, by comparison, minnows. It also has a huge amount of political power behind it. As a regulator, how do you address something like this without being intimidated by the forces involved?
“We have our mandate from Parliament, as well as the strategic steer from the Government, which tells us that we ought to focus on UK businesses and UK consumers, and ought to implement this regime in a flexible, collaborative, targeted, proportionate way. So that’s what we’re doing.
“We take all our decisions based on the evidence. Our analysis of the market showed us that Google has this position of what’s called substantial and entrenched market power…
“The law is intended to give us the flexibility to work out where that power exists and put in place targeted measures to tackle the effects of that power.”
Under the Digital Markets, Competition and Consumers Act Google could face a fine of up to 10% of global revenue ($40bn) if it did not comply with regulation. But would this ever happen? How badly would it need to misbehave in order to face financial penalties?
“In the case of enforcement and in the case of a finding of a breach, there is the potential for fines at the end of that process.
“We don’t expect to get there here, because we can see already that Google is starting to test the controls, and the ambition here is that we keep working with Google, and keep working with publishers, through this participative approach that we’re able to get to a change in the market without needing to resort to that kind of stage. But that’s always there as a backstop if needed.”
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