Monday, April 13, 2020

France's Competition Authority orders Google to start negotiations with news publishers 'in good faith'

By Emmanuel Legrand

France's competition watchdog has given Google three months to respect European Union's digital copyright law and provide news publishers with remuneration for the use of news snippets by the search engine.

  The Competition Authority (Autorité de la Concurrence) required that Google engaged, within three months, in negotiations "in good faith" with publishers and news agencies on the remuneration "for the re-use of their protected contents." The outcome of the negotiations will be to "effectively result in a proposal for remuneration from Google."  

  France was the first country in the EU to transpose in July 2019 the provision in the Copyright Directive in the Digital Age, which included a so-called neighbouring right for news publishers (Article 15). Google then said that it does not remunerate the content it features in its search engines, and offered French publishers with the option to provide news snippets, photographies, infographics, etc for free or not being featured on it different services (Google SearchGoogle News and Discover1), or only via headlines.

A balanced negotiation

  In its ruling, the Authority noted that the law of July 24, 2019 transposed into French law the Directive on copyright and neighbouring rights and aimed "to set the conditions for a balanced negotiation between publishers, press agencies and digital platforms, in order to redefine, in favour of publishers and press agencies, the sharing of value between these actors." 

  The regulator added: "This negotiation will have to cover, retroactively, the rights due from the entry into force of the law onOctober 24, 2019." In addition, the Authority instructed Google to provide monthly reports on how it is complying with the decision. 

  Richard Gingras, Google's Vice President for News, said in a statement: "We will comply with the order while we review it and continue those negotiations."

A dominant position

  The ruling includes a lengthy section analysing Google's operating practices, which were described as "potentially abusive." The Authority wrote: "At this stage of the investigation, the Authority considered that Google is likely to hold a dominant position on the French market for general search services. Indeed, its market share is around 90% at the end of 2019."

  According to the Authority, this dominant position translates into several aspects:
- the imposition of unfair trading conditions, which Google may have been guilty of by giving news publishers only two options (free or nothing);
 - bypassing the law by deciding that no remuneration would be paid for the display of any protected content, when in fact the law states the remuneration is the norm and no remuneration the exception;
discrimination, since by imposing "a principle of zero remuneration on all publishers without examining their respective situations and the corresponding protected content, Google is likely to to have treated economic actors placed in different situations in an identical manner without any objective justification," and therefore to have implemented "a discriminatory practice."

Propose a fair remuneration

  The Authority concluded: "These different practices are likely to constitute an abuse of a dominant position on the part of Google."

  The ruling from the competition watchdog was welcomed by France's Minister of Culture Franck Riester, who said that Google "now has to propose news publishers a fair remuneration commensurate with the value that the search engine derives from the content." 

  Riester added that it was "an important step towards the effective implementation of the neighbouring right of press publishers, introduced in May 2019 by the European Parliament and transposed in July 2019 into French law."

  Rights society SCAM, which represents multimedia authors, also welcomed "this hard-fought decision, and recalls that the authors of these articles must absolutely benefit fairly from the outcome of these negotiations, as required by the European copyright directive as well as [French] law."

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