Google offers behavioral pledges on news payments in France to try to end costly antitrust litigation

In its latest move to placate European competition regulators, Google has offered a set of commitments to France’s antitrust watchdog — in the hopes of settling a costly (for it) intervention over legally mandated payments for displaying snippets of news publishers’ content.

Back in July, France’s Autorité de la Concurrence slapped the tech giant with a fine of half a billion euros over a series of suspected breaches in how it negotiated with news publishers to remunerate them for reuse of their content.

The backstory here is the European Union agreed to a reform of digital copyright rules, back in 2019, which (among other changes) extended copyright law to cover snippets of news publishers’ content that were being routinely reused by aggregators like Google News.

While there was plenty of criticism of the reform at the time, the directive has given the bloc’s news publishers leverage over Google and does appear to have contributed to the adtech giant’s decision to abandon its earlier hard line stance — of saying it would never pay a penny for news content — in favor of creating its own content licensing product aimed at news publishers.

However that News Showcase product looked like a cynical attempt by Google to more cheaply circumvent legal requirements by using a global news licensing vehicle to bundle compliance with a growing number of national laws on news content remuneration (see also: Australia, which earlier this year passed a law requiring Google and Facebook engage in mandatory negotiations with publishers over content reuse) — and grab itself sweeping rights to publishers’ content in the process — and that’s exactly the sort of “bad faith” behavior that Google is being called out for in France.

France was one of the first EU Member States to transpose the pan-EU copyright directive into national law, and the Autorité has taken an aggressive approach to enforcing complaints over Google’s compliance with the new rules.

So, for example, when Google sought to evade application of the law in the country — by stopping displaying snippets of local publishers’ content unless publishers gave it free authorization to show them — the watchdog slapped down the practice, finding last year that it was likely to be abuse of a dominant market position; and telling Google it could not just unilaterally withdraw the content.

It also ordered Google to negotiate in good faith with publishers to pay for displaying their legally protected content — giving it three months to do so. After which, following a number of complaints by French publishers, the Autorité stepped in again to investigate Google’s behavior.

And it went on to apply interim measures in July, based on its preliminary concerns.

In a nutshell, the Autorité believes Google has applied “unfair and discriminatory settlement conditions”; and is likely to have sought to circumvent the law on “related rights” — although its investigation continues in parallel with the intervention.

The latest development now is that the Autorité has published details of a set of commitments Google has offered to try to resolve the investigation. The watchdog is consulting on the proposals — inviting interested third parties, publishers and news agencies to submit comments before January 31, 2022.

It will then hold a hearing with relevant parties and could choose to close the case — if it decides Google’s commitments are acceptable — at which point it would make them binding on Google.

It could also opt to amend and beef up the commitments. So Google’s offer is by no means the final word.

Over in the U.K., meanwhile, the Competition and Markets Authority is undertaking a similar procedure in relation to Google’s planned deprecation of tracking cookies to migrate to alternative ad targeting tech — with the CMA currently consulting on commitments Google has offered around its Privacy Sandbox proposal (and in that case if they are accepted Google has said it will apply them globally) — underlining the growing influence European regulators are having over the future shape of Big Tech.

Germany’s Federal Cartel Office also has an in-train procedure related to Google’s News Showcase T&Cs. So Google is likely facing more antitrust action on this front in Europe.

What is Google offering in France?

The Autorité said Google has proposed the following “remedies”:

  • Google undertakes to “negotiate in good faith” with press publishers and news agencies that so request, the remuneration for any reproduction of protected content on its services in accordance with the modalities laid down in Article L.218-4 of the French Intellectual Property Code (Code de la propriété intellectuelle) and according to transparent, objective and non-discriminatory criteria.
  • Google undertakes to communicate the information necessary for a transparent evaluation of the proposed remuneration, as provided for in Article L.218-4 of the French Intellectual Property Code (Code de la propriété intellectuelle).
  • Google undertakes to make a proposal for remuneration within three months of the start of negotiations.
  • In the event that the parties are unable to reach an agreement, the negotiating parties will have the option of referring the matter to an arbitration tribunal to determine the amount of remuneration. Google undertakes to pay the fees of the arbitrators and the arbitration proceedings in the first instance.
  • Google undertakes to take the necessary steps to ensure that the negotiations do not affect the indexation, ranking or presentation of protected content.
  • Google undertakes to take the necessary steps to ensure that the negotiations do not affect any other economic relationship that may exist between Google and the news publishers and news agencies.
  • An independent trustee approved by the Autorité will ensure the implementation of the commitments made and may, if necessary, call on the services of a technical, financial or intellectual property expert.
  • The commitments will apply for a period of five years.

In its own blog post about the proposals (written in French), attributed to Sébastien Missoffe, VP and CEO of Google France, Google points to recent deals it has inked with local publishers (such as AFP) — claiming this sums to “significant progress” on reaching an entente cordiale on the news numeration issue, while acknowledging negotiations with other French publishers are still ongoing.

Google condenses what it’s proposing — and what it hopes will end the expensive litigation, with Missoffe suggesting the proposals will “open a new chapter in the area of ​​Neighboring Rights” — under the following three subtitles: “Specific offers on neighboring rights”; “Respect for the choices of the publishers”; and “More transparency and independent supervision”.

And we could perhaps further condense that to an offer of “specific respect, supervised”.

It’s certainly notable that both the Autorité’s intervention over news and the CMA’s investigation of Google’s Privacy Sandbox have led to an offer — by Google — of an monitoring trustee to verify compliance, underlying how little trust advertisers and publishers have in the tech giant doing the right thing when no one is looking.

Indeed, the first set of commitments Google offered the CMA did not go far enough to convince the wider market which feeds Google’s ad coffers that it would play fair — leading Google to come back with enhanced commitments (including the offer of the monitoring trustee and a slight extension to the length of time the commitments would be enforced).

It remains to be seen whether publishers in France will be content with Google’s first offer — or also push for greater assurances that the tech giant will play fair over news remuneration.

Google, meanwhile, signs off its blog post by claiming its “objective” is to “conclude definitive agreements, in compliance with the law, and to open a new chapter with press editors”. But the prospect of a $592 million fine has doubtless helped concentrate minds in Mountain View vis-à-vis compliance with French law.

“Regardless of these commitments, Google will continue to invest, as we have for years, in products and training to support journalism,” Missoffe adds in remarks that are of course irrelevant to the specific issue of compliance with French law.