Generative AI, not ad tech, is the new antitrust battleground for Google

Currently, publishers using Google search claim they are unable to opt out from their material being ingested for Google’s AI large language model training and/or being crawled for summaries, without losing their ability to appear in Google’s search results.

The alliance has gathered evidence since Google AI Overviews began rolling out in the U.K .last October, to include in the complaint, which reveals the detrimental effect of AI Overviews on independent publishers’ sites, and a direct correlation that opting out of Google AI Overviews has on a publisher’s search index placement. It plans to publicly release additional findings of the report in the next few days. 

In the document, dated June 30, to the European Commission, seen by Digiday, the alliance requests that the regulator imposes two specific conduct requirements on Google: that it enable opt out from crawling, scraping and ingesting data and publishers’ content for its AI capabilities, while ensuring that news publishing organizations continue to be indexed and shown on a non-discriminatory basis, as part of Google search. The second request: that Google provide fair compensation for all publisher content.

“What’s crucial is that the current unlawfulness [of unauthorized content scraping] is stopped now that the opt out is provided, which means that you can say no to your data being crawled and remain in the Google search indexing so you’re not wiped off the internet,” Rosa Curling, a lawyer, co-founder and director of Foxglove, told Digiday. 

Curling stressed that there needs to be a proper negotiation process between the big tech companies and publishers to figure out what’s a fair deal, in terms of compensation. They did not provide specific dollar amounts. But instead emphasized that the goal is to enable the opt-out without jeopardizing a publisher’s search visibility. 

“What’s happening now is Google is just stealing all the data, regurgitating it, and if you try in any way to exert your own rights, you are pushed off the internet by being removed from the search indexing. And that is what is so fundamentally wrong about what’s happening at the moment, and in complete breach of competition, she added. 

Google views many of the claims made about traffic from search as “highly incomplete” and based on skewed data, according to a spokesperson. And that sites can gain and lose traffic for a variety of reasons, including seasonal demand and regular algorithmic updates.

In request for comment on this story, a Google spokesperson said that Google sends “billions of clicks” to websites daily. “New AI experiences in search enable people to ask even more questions, which creates new opportunities for content and businesses to be discovered,” the statement said.

AI is now a core part of how Google Search works, so the main way for web publishers to control access is by using the standard robots.txt file to manage how Googlebot crawls their sites, according to a Google spokesperson, who said publishers can also use snippet settings to restrict how their content appears in features like AI Overviews or the experimental AI Mode.

However, while publishers can see if Googlebot is on their sites, it doesn’t disclose what it’s there for. Could be search, could be AI. And there’s the rub.

Foxglove is currently working with other regulators, in South Africa, Germany and other countries, to ensure that Google isn’t able to “jurisdiction hop” on the matter, said Curling, who added they have also been in touch with the DOJ, whose recent antitrust ruling against Google’s monopoly of ad tech, has had “positive ripple effects” for other lobbyists and regulators. 

“What’s so important is that the courts and the regulators catch up with what’s happening,” Curling said. But she added that while these investigations are underway, immediate remedies are required to prevent publishers from going out of business in the short term. 

Generative AI the new frontier for regulatory scrutiny 

This latest EU complaint from independent publishers marks the third potential major antitrust battle currently facing Google. The Department of Justice has two other ongoing lawsuits targeting Google’s search and ad tech dominance and is in the middle of determining what behavioral remedies will suffice. 

But the latest EU complaint marks a deeper shift in the regulatory mood.

Until now, global antitrust efforts against Google have largely focused on traditional power plays — default search engine contracts and control over the digital ad stack. But as generative AI reshapes how content is surfaced and monetized, regulators could scrutinize the next front: AI overviews, LLM training, and the impact on publisher traffic and revenue. 

Historically, regulators, legislators and the industry in general have been known for responding to yesterday’s problems, rather than tomorrow’s, said Paul Bannister, chief strategy officer at Raptive. “AI is where all the future battles lie,” he added. “If the industry has to wait 10 years for regulatory and legislative solutions to come down, like, half the companies are going to be out of business because of the actions being taken by big tech right now.” 

Just how successful these investigations will be will come down to just how hard Google is willing to fight, Bannister said, adding that the CMA made good progress in its investigation into Google’s cookie deprecation plans, but that Google may not want to play ball as cooperatively regarding AI. “AI is a 100 times larger issue to Google [than the cookie deprecation investigations] … Google views AI as existential — like if they’re not ahead of it, they think their own business could fall down in like five to 10 years,” he said. 

Meanwhile, U.S. lawmakers have removed a key barrier to state-level AI legislation. Last week, the U.S. Senate voted to remove a 10-year federal moratorium (effectively a proposed ban) on state regulation of AI from President Trump’s tax-cut and spending bill.

For some, it’s a sign that oversight of how tech giants use AI to repurpose and profit from publisher content is no longer just a distant policy concern, but an emerging battleground. 

Danielle Coffey, CEO of News Media Alliance, which represents over 2,000 publishers in the U.S., released a statement saying she hoped Congress would now take up further legislation to regulate AI on a federal level. “We’re seeing a critical inflection point in how regulators globally are approaching Big Tech — not just scrutinizing entrenched dominance in search and ad tech, but also anticipating how that power is being extended into AI,” said Coffey. She added that it’s essential that competition policy keeps pace with this shift, or we risk replicating the same concentration and control in emerging technologies. “Europe’s inquiry signals that governments are starting to connect these dots.”

Unauthorized content scraping has been an online pestilence for publishers. Trade association News Media Europe, which represents more than 2,700 publishers across Europe, has pressed the European Commission to intervene, using both competition enforcement tools and the Digital Markets Act (DMA), to put a stop to Google AI Overviews. “This is an urgent issue that needs attention now before it’s too late,” said Iacob Gammeltoft, senior policy manager of News Media Europe. 

The DMA in particular can be used to impose interim measures pending the outcome of a market investigation, and has specific provisions that prohibit self-preferencing practices and require that the conditions of access to the search engines of digital gatekeepers such as Google be fair, reasonable and non-discriminatory, according to Gammeltoft.

“What’s at stake with AI overviews is of an entirely new order of importance; it’s the business model of publishing itself,” added Gammeltoft. “Since we’re talking about a product that keeps users away from the property of publishers, they can no longer run ads and users lose their incentive to take out subscriptions. And so the value chain breaks down entirely, while Google continues to do business and ignore copyright law, because it can.”

Sajeeda Merali, CEO of the Professional Publishers Association, said that publishers are embracing AI’s transformative potential, but that it can’t be at the expense of robust copyright laws that support responsible, transparent AI use and protect publishers and creators.

“Regulators globally need to stand up to Big Tech and act fast to strengthen critical competition, intellectual property rights, and copyright laws to safeguard the future of a sector employing 55,000 people and worth £4.4 billion [$6 billion] to the U.K. economy,” she said in an emailed statement.