(Mar. 4, 2021) On February 10, the Higher Regional Court Munich I (Landgericht München I, LG München I) granted two applications for preliminary injunctions against the German Ministry of Health (Bundesministerium für Gesundheit, BMG) and Google Ireland, Ltd. (Google) requested by NetDoktor.de GmbH (NetDoktor). The court held that the agreement between the BMG and Google to prominently show “knowledge panels” populated with information from the National Health Portal of the BMG when people perform a Google search on diseases violates German competition law. Knowledge panels are “information boxes that appear on Google when you search for entities” and are meant to provide a “quick snapshot of information on a topic based on Google’s understanding of available content on the web.” They are placed next to or ahead of the other search results.
Facts of the Case
The applicant NetDoktor has been providing health information on its website for more than 20 years and is currently the number one market provider in Germany. The information presented fulfills scientific standards but explains it in an understandable way. The National Health Portal of the German Ministry of Health went online on September 1, 2020. The aim of the National Health Portal is to “provide quality-controlled, independent, and easily understandable health information online.” The applicant’s website generally shows up as the first or one of the first Google search results when people research health topics. The search engine from Google has a market share of around 90% in Germany. (LG München I, paras. 1–8.)
On November 10, 2020, Google and the BMG announced cooperation to make it easier for people to research health topics and find reliable information online. For that purpose, information from the National Health Portal is presented in a prominently displayed infobox (knowledge panel). A link inside the box allows the user to directly access the article on the National Heath Portal. The boxes appear either on the right-hand side next to the ads and the generic search results on a desktop or after the ads but before the generic search results on mobile applications. Currently, infoboxes are available for around 160 syndromes. Since the infoboxes have been introduced, general traffic to the website of the applicant has stayed constant; however, traffic for selected health terms and important keywords has declined. (Paras. 9–14.)
The applicant alleged that the cooperation between Google and the BMG violated competition law, in particular because the BMG did not act in an official capacity but as a private company. (Para. 17.)
The court granted the preliminary injunctions of the plaintiff. (Para. 63.) It agreed with the applicant and held that the BMG did not act in an official capacity and was therefore subject to competition law. Health portals have not always been, and must not necessarily be, operated by public entities, in the opinion of the court. It stated that the BMG had entered into an agreement with Google that resulted in a restriction of health-portal market competition. It explained that, because of the agreement, the best position to appear in search results—the prominently displayed infobox—was from the start not available to private providers of health portals. As a health portal operator, NetDoktor particularly depends on its search result visibility on Google, which has the biggest market share in Germany. Its visibility is severely limited by the infoboxes as they draw attention and distract users from the general search results. Most of the time, the infoboxes already satisfy the information needs of the users, in the opinion of the court. This leads to reduced user numbers, which could potentially lead to a loss in ad revenue numbers for NetDoktor. As a private provider, NetDoktor depends on this revenue to finance its portal, the court explained. (Paras. 73–96.)
The court further held that no exception to the general rules applied in this case. An exception may apply when the production or distribution of goods is improved or when technical or economic progress is promoted. Such agreements result in efficiency gains for the user—for example, reduced search efforts or improved health education. However, in this case, the court did not find that the advantages for the user outweighed the disadvantages, in particular as the agreement between Google and the BMG threatened to limit the diversity of opinion and media. (Paras. 89–109.)
The court did not rule on the general admissibility of the National Health Portal as this request was withdrawn by the applicant.