2026/03/18 by Spencer Cohen, Todd Davies · 1 voice
Medicine · Computer Science · Social Sciences · #Artificial Intelligence in Healthcare and Education #Explainable Artificial Intelligence (XAI) #Ethics and Social Impacts of AI
paper · doi:10.1093/jeclap/lpag025
openalex publication_date 2026/03/18 · openalex created_date 2026/04/14 · openalex updated_date 2026/06/19
Google’s new AI Overview feature has raised competition concerns relating to publishers’ inability to opt-out. We argue that the harm to competition caused by AI Overview instead lies in its ability to hoard traffic, diverting it from publishers. We show how an opt-out remedy would be ineffective at ending the infringement, providing meaningful choice to publishers and may have several unintended consequences. Competition authorities should therefore re-evaluate their approach to remedies, with a stronger focus on protecting merit-based competition for user traffic. In 2024, Google launched AI Overview on Google Search. This feature places a summary response to most user search queries atop the search engine results page (SERP) powered by Google’s Gemini AI model. This summary is prepared through the aggregation and synthesis of the sources below the AI Overview on the SERP. This aggregation process is referred to as grounding. Since its introduction, the AI Overview has steadily reduced direct traffic to publishers’ websites.1 The term ‘publisher’ includes ‘any party that makes content available on the web to any natural or legal persons [using] Google’s general search services’.2 While much of the debate on the AI Overviews has centred around news organizations, a wide variety of publishers have been affected, including blogs, forums, review platforms, and different service aggregators. Empirical evidence suggests that websites that provide public goods, such as those that provide free and reliable educational content, have suffered the most significant drops in traffic.3 This decline in website click-through rates (CTRs) is attributable to the introduction of AI Overview and threatens publishers’ capacity to generate revenue through their websites, which is core to their business models. The AI Overview has therefore led to a decoupling between traffic on Google Search and traffic on publishers’ websites. In other words, it has created a market structure in which Google Search retains traffic at the expense of independent publishers. The risks of these dynamics are stark: the structural and accelerating decline in revenue for publishers has already resulted in the mass layoffs of journalists, and a corresponding deterioration of the quality of information online.4 This pattern both harms competition for visibility online, and also creates harms to democracy. Indeed, the project of self-government in healthy liberal democracies requires plural, high-quality journalism ie accessible to all, a project competition law has historically protected.5 In this context, the Competition and Markets Authority (CMA) has proposed, pursuant to its powers under the Digital Markets, Competition and Consumers Act 2024, a remedy to enable publishers to ‘be able to opt out of their content being used to power AI features such as AI Overviews or to train AI models outside of Google search’.6 The package of measures also includes interventions to improve the attribution of source material within AI Overviews, the transparency and fairness of search rankings and the grounding process, and the portability of Google Search data. This opt-out remedy has seemingly attracted broad support in the academy7 and amongst publishers. The News/Media Alliance8 and the European Publishers Council (EPC),9 representing the interests of publishers in the European Union and the USA respectively, have called for this remedy to be adopted in the course of abuse of dominance litigation against Google relating to its AI Overview. Likewise, the European Commission has recently opened an investigation into Google under Article 102 of the Treaty on the Functioning of the European Union (TFEU) for using the content of publishers on its SERPs ‘without appropriate compensation to publishers and without offering them the possibility to refuse such use of their content’.10 It is concerned that publishers cannot ‘refuse’ Google using their content in its AI Overviews (ie opt out) ‘without losing access to Google Search’ on which they depend ‘for user traffic’.11 The EPC ‘strongly welcomed’ the Commission’s investigation, as have prominent nonprofits such as Article 19 and Foxglove.12 We make two arguments about the proposed opt-out remedy. First, that it has no coherent justification. Second, that it would create undesirable unintended consequences. The purpose of these arguments is to highlight that the current proposals for an opt-out remedy are insufficient. Competition authorities must, at the very least, supplement any such remedy with additional measures to ensure the remedy is effective, proportionate, and does not have adverse consequences on the market or on democracy. Google has much to lose from the rise of AI assistants. Its flagship product, Google Search, responds to user queries with a list of ten links. AI assistants like OpenAI’s ChatGPT represent a new paradigm. They serve ‘up information in clear, simple sentences[,] explain concepts in ways people can easily understand[, and] even generate ideas from scratch, including business strategies, Christmas gift suggestions, blog topics and vacation plans’.13 To counter the threat posed by consumers moving away from Google Search towards AI assistants, Google has invested heavily in its own AI offerings.14 Google’s response included the development of its own AI chatbot (Gemini), and more importantly for our purposes, the integration of AI into its search engine through AI Overview. To discourage users from turning to rival AI assistants with their search queries, Google began to provide AI-generated natural language responses to users for some queries, essentially transforming its search engine into a one-shot chatbot.15 Google’s innovation can be reasonably considered a product improvement. Yet, as was established in Google Shopping, product improvements do not necessarily constitute merit-based competition under Article 102 TFEU.16 Hence, even if Google’s aim is to adjust its business model to adapt to dynamic competition from AI chatbots, if the new business model leads it ‘to take part in an abuse of a dominant position, there is nothing to preclude that [business] model being caught by the prohibition under Article 102 TFEU’.17 To analyse the anti-competitive effects of Google’s conduct, it must be separated into two parts: the demand side, where Google leverages its monopoly power to shape the flow of traffic around the internet, and the supply side, where Google leverages its monopsony power to coerce publishers. On the supply side, Google uses its monopsony power to dictate unfavourable terms for how publishers’ content is used in the provision of AI Overview, a concern raised in several jurisdictions. The Commission, in the press release announcing its investigation into Google’s conduct, framed its efforts as an examination of whether Google was ‘imposing unfair terms and conditions on publishers and content creators’. It was particularly concerned that publishers were being denied ‘appropriate compensation’ and the possibility to ‘refuse [the] use of their content’ in AI Overview without also being de-listed from its search engine.18 At the time of writing, the Commission is yet to commit to a specific remedial approach. The CMA’s aforementioned package of commitments also focuses on the supply side, although unlike the Commission, it barely mentions bargaining power.19 Its proposal takes a decidedly technocratic approach, seeking to foster ‘choice over how [publishers’] content [is] used by Google in its AI-generated responses’, transparency to aid in publishers’ ability to make informed choices, and ‘attribution of content in AI-generated responses’.20 This approach, which has generally been received with approval amongst competition law scholars,21 allows publishers to opt their content out of the grounding of AI-generated responses in Google Search. It also requires that Google publish information about how publishers’ content is used, create metrics for publishers, and ‘take reasonable steps’ to ensure that publishers’ content is properly attributed in its AI-generated segments of SERP pages. Lastly, Judge Mehta considered imposing an opt-out remedy in United States v Google, pertaining to Google’s attempted monopolization of the online search market.22 The plaintiffs put forward the same concerns about Google’s superior bargaining power, and the all-or-nothing choice faced by publishers with regards to opting out of both conventional search results and AI Overview.23 Ultimately, however, Judge Mehta declined to impose any remedies because in his view the plaintiffs neglected to provide a ‘sufficient factual basis’ on which they be and they not to the at The demand has received the for AI Overview in the is that Google may to its dominance in the online search market to merit-based competition for AI assistants. Google has AI Overview into its search it has its own AI from its search In this Google has not used its power in online search to the of Gemini its search engine to have to competition in the market for AI assistants is a Google is with rival AI assistants with its Gemini through AI Overview. the more anti-competitive harm lies in how Google’s competition for user traffic, ie AI Overview traffic within the Google Search this traffic to publishers. To this a user for on a news if the information the user is for is in AI Overview, that user be to through the websites in the In this Google websites like news of user traffic by it on its own a market of around in online Google as a source of The Commission’s Google established that such traffic is a for yet its is not to The business model of online publishers on web is by traffic through direct or traffic, of of publishers’ websites not be to by traffic is also for publishers in a because it allows them to improve their websites by as of the content or on their user the of users on its SERP by them a Google has direct traffic competition with to the introduction of AI Overview, traffic was to publishers from Google’s search engine to a merit-based Google and to the websites in its on their to the and users which website to on the of Yet, as established by the Commission in Google Shopping, Google the by its own at the of the search to traffic to those The Commission, and the such to be AI Overview, Google to have its ability to direct traffic on its search in this by it on to publishers. of has the of harm in Google does not Google’s AI Overviews because they are not in Google’s search the established in Google Shopping, that Google must not its dominant to the structure of the We argue that the introduction of AI Overviews risks harm to the structure of competition for user traffic publishers. Indeed, Google’s dominant in the online search market it a not to merit-based competition for traffic, under Article 102 To Google’s AI Overview has the of online search by transforming Google’s SERP from a to a Competition and to have this remedial approach to a which to the of power between Google and publishers that AI Overview on the supply In and competition authorities have easily this to the structure that Google has to about and the harm to competition for traffic that it To their to competition authorities must not be content with they must a part in them The opt-out remedy of this as in the are two for the opt-out remedy. First, that it is to Google’s Second, that it publishers with more choice and it does The purpose of any competition law remedy under or competition law is to the to an This requires between the remedy and the effects of the In other words, the remedy must be to the specific harm to competition in In our the opt-out remedy this of the core harm caused by the AI Overview is the of traffic, and therefore the ability to generate from publishers to Google This is a competition law of independent publishers are the of the Google’s of traffic threatens the of their business which on content to traffic from sources such as Google’s SERP. publishers to opt out of AI Overview is not at this core The purpose of the opt-out is to provide publishers with a of choice about whether and how their content is and by Google in the grounding process for AI Overview. opt-out may be a to through a remedy. this choice not the structural market conditions which have led to the of traffic caused by AI Overview and the corresponding decline of publishers’ ability to generate traffic and In other words, it does not the core the opt-out remedy a to the publishers would not be to take of the new to opt The evidence suggests that websites by AI Overview It is that consumers their and the AI Overview the of the opt-out are on traffic, therefore have an to opt in their It is to any material to the market dynamics the remedy is Google, publishers, and consumers be faced with the same and the opt-out of which to traffic away from the websites of publishers. The opt-out does not the structural threat to the of independent publishers caused by AI Overview. Google can use in AI Overview is the as AI Overview independent publishers’ be by traffic as Google In the purpose of the opt-out remedy does not to the harm which has the structural of traffic away from publishers’ websites to AI Overview. The remedy risks being more This is in of the of the choice it publishers, as show The for the opt-out remedy is that it and consumers more choice and over how they with Google’s search argue that the choice it to publishers is to the of Ultimately, the ability to opt out of AI Overview does not any meaningful additional for publishers. more choice does not necessarily to more In the of additional or can This is because if in the of the this the is under a to the of In other words, the of choice for is not in it can be Hence, on a any choice by the opt-out which to create any would not create additional or meaningful for publishers. publishers a or in a choice between two The is to Google to their on Search in for to the and grounding of AI Overview. The Google is to opt out of and grounding AI Overview, in for from Google which in traffic from Google Search. publishers are caught between a and a is no choice to be between the and the choice to from Google Search. In this context, the purpose of any competition law remedy must be to merit-based competition for traffic a market structure in which publishers are faced with the additional power by the remedy to opt out of AI Overview without opting out of Google Search provide publishers with an from this The of opting in the in because the the to the of a in for the Google by publishers opting This to publishers the of their own because AI Overview without any material improvements in the publishers’ capacity to generate their own traffic and the choice to opt out no requires publishers to from Google Search. has this the of publishers to opt Empirical show that publishers are not in AI Overview have that of The to publishers is as to being The to opt out therefore an of because it would put the capacity of those publishers to traffic at a significant to publishers have the business to this are because a it does not any Hence, the opt-out remedy does not create any new for publishers. In other words, it does not publishers choice and over how they with Google’s search as was this proposal the choice a with a opt-out In however, this choice is more the the was and by the The of the choice to publishers is by the proposed choice It is the of an opt-out that opting in is the Publishers must take to this in the process, Empirical evidence suggests that this of is effective, to the Google the choice as to make the of opting out for publishers, publishers from In publishers may in their to opt out publishers, and the power between Google and In the same and of the of Google ‘to publishers or to that the quality of the choice to In these the opt-out remedy publishers a choice which to be in In other words, and should be of the Google to on or even the power between Google and publishers. remedy which risks providing the with a structural over the publishers have suffered harm must be the an opt-out to publishers a and as does not the of publishers. In choice the current proposals for publishers to be the power to opt out of AI Overview. The remedy does not the specific harms to publishers by AI Overview, and to provide publishers with and choice in their with We have that the opt-out remedy is it Google’s infringement, it provide publishers with additional meaningful In this show that it the for unintended consequences which would harm the and democracy. publishers to opt out of Google’s AI Overview the quality and of the information which it to with high-quality and sources from which to Google on a and reliable of the quality of AI Overview. This is particularly for or queries, where the most and are within a very of websites, Google of reliable information with which to an informed In to the of the available to Google the of its AI models its To AI to be on and quality the flow of content to Google through an opt-out remedy its ability to models. the same remedy would not to Google’s such as or with Google in the development of AI an and Google’s ability to in dynamic competition with other the opt-out may the quality of AI Overview by an additional of between the Overview and the source of the the of information has the grounding process on the that and are as information from the source to sources and to the AI-generated The is turning the grounding process into a of the is a news source which has out of AI Overview. a investigation, evidence of is and has publish their own about without any additional Google’s AI Overview it cannot because has out of AI Overview. In this an opt-out in an unfair of this would be the even with of the attribution commitments by the It is a of fairness that should be for the of its it would be unfair to for the information which has invested in and to the opt-out the of from the attribution of for that this it would be unfair to publishers like have created This of have consequences. be of the of its through on AI Overview, would not the from its in terms of traffic or and by in terms of these would flow to by AI Overview. This would for would be from high-quality are not to on the with to the created by and appropriate it for In the these to in the of publishers, or in independent journalism of power to While may be able to on into their capacity to do in to The opt-out Google to on an In our has invested heavily in its investigation of This has a and public in the of information about as not the of this Google AI Overview, Google the of this information has the of Google a it a of the traffic by demand for the information that has without the corresponding of its This the of whether has in or Google can on if Google can by the information about through the dynamic a AI Overview Google to from not to the of its dynamics are the remedy risks Google’s it to the of high-quality which the ability to appropriate at part of the by Google to user at the of search through AI Overview, the capacity to its own this dynamic an its on particularly where these are most This dynamic is not to and leads to a where publishers create high-quality content with are able to create revenue from their content, and are able to and To these market competition authorities at a Google to to publishers like of how a should be is out of for this should from the with the on in the Digital which publishers a to refuse the use of their content or demand a yet was by of bargaining power between publishers and remedy must ensure that Google can no from it not make without the the Google would the between the of and the of that This would market to in high-quality the of the created by high-quality Ultimately, a a direct to the that Google’s which should be a aim of any remedy in these The opt-out also AI Overview to and if the remedy a pattern of the from which AI Overview would In this the to users through at the of the grounding available to AI Overview. This is therefore to of high-quality information is a for the of and of in healthy In this these in the grounding process a This as a of business or it be It would be to Google with information and opting in to AI Overview, to the from which the are the of traffic by AI Overview, even in source may have consequences on the of is also a through which AI Overview be publishers are by purpose is to shape public through their content, to a on their these publishers, in AI Overview would represent an a in would the and of their at the from their In this the opt-out remedy the of in AI Overview. The opt-out remedy therefore risks AI Overview to and democracy. Competition law has to and a of on information should preclude competition authorities from the opt-out remedy without at the of of AI Overview. Lastly, seeking to the publishers on which free and there are several an opt-out remedy may in harm to democracy. First, it risks the web and the of the independent publishers depend on traffic to would be by the opt-out remedy. In publishers provide the very conditions for provide the public of educational and those provide the and for that to take been those most by AI Overview. In this the opt-out remedy the for democracy. Second, AI Overview capacity to their to they on the internet, and the opt-out to to consumers the capacity to that for choice is a by competition capacity to between different power and In this context, that choice includes which to consumers access news through AI Overview by which publishers a of that of is The and sources into a the choice of on the if sources are the of and is no by the by the In this AI Overview risks the for choice with in a the remedy ineffective and the risks the would be the of Google’s competition to Google’s anti-competitive conduct, the concern is that its structural power cannot be by public This is a of that power and that power, of this competition authorities should not a remedy which risks would not the harm is to it risks Google’s structural power public Competition law in the of has the of measures ending the been to Yet, as has been the choice and of remedies has a of competition in the The opt-out remedy risks to the list of ineffective remedies on In this have two arguments as to a remedy which publishers to opt out of Google’s AI Overview the of competition First, that the opt-out remedy a coherent justification. It not Google’s of traffic away from publishers to it provide publishers with additional meaningful over how they with Google Search. Second, the opt-out remedy have unintended consequences which both competition and democracy. We have such a quality AI Overview, the of information by AI Overview, the of Google’s the possibility of in AI Overview, and a of It is not to The is on its package of proposed and the Commission is yet to commit to any specific remedy. To ways First, if on publishers the to in AI Overview, with and that it must be through an an opt-out In any such remedy must and the unintended consequences which have in This would the of for the harms including the risks of and On the other are that the attribution and can be through any additional they are in the of a remedy. While do not an remedy as a it would be the proposals in their current Second, instead a remedy Google to AI Overview. would demand that no remedy would the infringement, for which the competition would the In that an can be that Google’s AI Overview is the websites from which its content is it is with merit-based The of this approach are First, it is and requires Second, it the in Google’s to in with its under Article 102 an business ie with merit-based It has of to do Google to publishers a in for the use of their content in AI Overview. While this proposal from a of and would the of publishers, it from to the opt-out remedy. First, in the the is the attributable to the AI Overview, such a remedy would publishers in a they would have been in for Google’s Second, a would to or the infringement, ie the of traffic away from publishers. it risks Google’s power publishers by them on the which Google have been to publishers Google Search. these a would not provide an remedy would provide a of fairness if within a package of measures more to the