I believe that abuse of a search engine's dominant market position is one of the most egregious issues today. van Eijk argues that dominant search engines could unfairly exclude certain parties in their search results, treat their own services preferentially and exert excessive control over the advertising market [1]. The issue is severe because search engines have been described as a "natural monopoly" [2]. Search engines can offer more relevant results through better algorithms or increasing the number of pages indexed [3]. Consumers who benefit from the more relevant results will prefer using that search engine which in turns brings in more revenue for the search engine to improve the relevance of their results. Hence there is a tendency for the industry to continuously gravitate towards a few large players controlling most of the market share. Since the de facto position is very conducive for such abuse to occur, regulators have to be proactive in lawmaking, maintaining oversight, and promptly enforce the regulations to prevent search engines from abusing their dominant position.
I think the Digital Services Act (DSA) is well positioned with Art. 33 specially calling to attention "Very Large Online Search Engines" (VLOSE) [4]. The regulators were probably cognizant of the risks of abuse of dominant market position, hence the focus on VLOSE instead of all search engines. Art. 34 and Art. 35 places obligations on these VLOSEs to evaluate and mitigate risks associated with unfairly recommending their own services or unfairly moderating the content of other parties [5]. Art. 37 and Art. 40 mandates an independent audit and compliance functions while Art. 39 and Art. 42 set requirements on transparency [6].
van Eijk stated that Search Engines have become an "essential part" or "bottleneck" when accessing information online [7]. Given their importance and the reliance that everyone places on search engines, I believe the the obligations imposed are fair and balance the importance of protecting fair competition and consumer welfare against the right to conduct business
[1] Van Eijk N, Telecommunication Markets (Physical Verlag 2009), pp. 151 - 152
[2] ibid
[3] ibid, pp. 142
[4] Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) [2022] OJ L277/1, art. 33
[5] ibid, art. 34 and 35
[6] ibid, art. 37, 39, 40, 42
[7] Van Eijk N, Telecommunication Markets (Physical Verlag 2009), pp. 141