Brazil’s antitrust tribunal, CADE, has unanimously ordered the reopening and expansion of its investigation into Google’s use of journalistic content, signalling a potentially important development in global competition enforcement against digital platforms.
In a decision issued on 23 April, CADE’s Tribunal endorsed the position advanced by interim president Diogo Thomson de Andrade, rejecting closure of the case and returning the matter to the General Superintendence for the initiation of formal administrative proceedings. The investigation concerns whether Google’s use of publishers’ content in search results may constitute an abuse of dominant position under Brazilian competition law.
The Tribunal concluded that the conduct can no longer be assessed solely through the framework originally adopted when the inquiry began in 2019. At that time, the focus was on Google’s display of headlines, excerpts, and images from publishers within search results. Thomson argued that the integration of generative AI into search interfaces has materially transformed the competitive dynamics by allowing Google to synthesize and present information directly within the search environment, potentially reducing traffic to publisher websites and undermining monetization.
The Tribunal endorsed further examination of whether the conduct could amount to exploitative abuse of dominance. Thomson advanced the theory that Google may be extracting and internalizing economic value from publishers’ content without proportionate compensation, while benefiting from publishers’ structural dependence on Google as an essential intermediary for audience reach.
According to the decision, this dependence may enable Google to impose unilateral conditions for the use of content, with limited practical alternatives available to publishers. Thomson further emphasized that Article 36 of Brazil’s Competition Law provides sufficient flexibility to capture exploitative practices even where they do not fit traditional exclusionary abuse frameworks.
In a concurring opinion, Council member Camila Cabral Pires-Alves stressed the need for more granular empirical evidence to assess the competitive effects of modern search functionalities. She urged the General Superintendence to gather more disaggregated data on user engagement and referral patterns, including zero-click searches, click-through rates, dwell time, and referral traffic segmented by functionality and publisher type.
The decision shows a shift in CADE’s approach after the General Superintendence had previously recommended closure of the investigation for lack of evidence. If pursued to infringement, the case could become one of the most prominent examples globally of a competition authority applying exploitative abuse doctrine to the monetization of third-party content by digital platforms, particularly in the context of AI-enhanced search.
