by Mitch Kokai
Senior Political Analyst, John Locke Foundation
European anti-trust regulators are giving us another free lesson in confused thinking by filing anti-trust charges against Google, on grounds that its searching facilities give preferential treatment to Google’s own searching services over other competing searching services.
The European Union’s commissioner for competition explained the basis for the complaint against Google: “We have a focus on a certain conduct, a certain behavior which, if our doubts are going to be proven, we would like to change because we believe that it hampers competition.”
Some of us think laws should be clear-cut statements of what you can and cannot do. Indicting people under laws that can lead to fines in the billions of dollars over what “we believe” or what international bureaucrats have “doubts” about is not really law. It is an exercise of arbitrary power, based on whatever subjective notions are in vogue among government bureaucrats.
The history of American anti-trust law shows too many similar vague and confused notions masquerading as law. The idea that the accused must prove their innocence, under the “rebuttable presumptions” of the Robinson-Patman Act of 1936, was a forerunner of the same mindset under later “disparate impact” theories in civil rights law.
What such fancy words boil down to is that very little evidence is required to shift the burden of proof to the accused, in defiance of centuries-old legal traditions that the accuser has the burden of proof in criminal cases and the plaintiffs have the burden of proof in civil cases. Otherwise, any fact or theory that sounds plausible to legal authorities is enough to force the accused to prove a negative or lose the case.