On April 9, 2020, the French Competition Authority (the “FCA”) imposed interim measures on Google following three complaints lodged in mid-November 2019 by publishers unions Syndicat des éditeurs de la presse magazine and Alliance de la presse d’information générale and news agency Agence France Presse (the “Decision”). The FCA found that interim measures were necessary to prevent a potential abuse of dominance in the French market for general online search services.
The alleged practices
French Law N°2019-775 of July 24, 2019 (the “Law”), transposing Directive N°2019/790 of April 17, 2019, created new copyright-related rights (“droits voisins”) on content published by news agencies and publishers online. Under the Law, publishers can authorize or prohibit the reproduction by platforms, aggregators, and search engines of protected content such as text extracts, images, and videos.
A month before the entry into force of the Law, Google announced that it modified its news display policy and decided to no longer display protected content in its search engines unless publishers gave it authorization to do so free of charge. The complainants claimed that Google circumvented the purpose and spirit of the Law and imposed unfair trading conditions on news publishers and agencies.
The FCA found that the overwhelming majority of publishers and news agencies allowed Google to display protected content without financial compensation, while publishers which did not give Google such permission faced significant traffic decline.
A potential abuse of dominance in the French market for general online search services
At this stage of its investigation, while not ruling on the merits, the FCA found that Google may have relied on its dominant position in the French market for general online search services to (i) impose unfair trading conditions, (ii) impose discriminatory conditions and (iii) circumvent the Law, which justified ordering interim measures.
First, the FCA found that Google may have imposed unfair trading conditions under Article L.420-2 of the French Commercial Code and Article 102(a) TFEU by unilaterally changing its news content display policy a month before the entry into force of the Law. According to the FCA, Google has not entered into any negotiations with publishers and news agencies to define the terms and conditions to display and pay for the reproduction of their content under the Law. In other words, Google’s conduct forced publishers and news agencies to waive the expected benefits of the Law, since they had to choose between refusing to grant a free licence to Google at the risk of losing traffic and revenues, or agreeing to Google’s new policy.
In addition, the FCA found that, at this stage of its investigation, Google’s decision to impose a zero compensation policy to reproduce protected content of publishers and news agencies did not constitute a reasonable measure. The FCA explained that, while Google derived economic benefits from the reproduction of protected content, the Law was designed to transfer part of these benefits to publishers and news agencies. The FCA thus concluded that Google’s conduct may amount to the imposition of unfair trading conditions on publishers and news agencies.
Second, the FCA found that Google may have engaged in a discriminatory practice under Articles 102(c) TFEU and L.420-2 of the French Commercial Code by imposing its zero compensation policy on all publishers, without taking into account their individual situation and the particular content at stake. The FCA considered that the notion of discrimination could consist in treating in the same way situations which are objectively different . The FCA concluded that, at the interim measures stage, Google’s undifferentiated treatment may not be objectively justified and may therefore be abusive.
Third, the FCA found that Google may further violate Articles 102 TFEU and L. 420-2 of the French Commercial Code by circumventing the objective of the Law. In particular, the FCA found that Google used the possibility left by the Law of granting free licenses to impose a general principle of zero remuneration for the display of protected content on its platform. According to the FCA, Google could thus obtain new, even more advantageous, trading conditions than before the Law was enacted.
Finally, the FCA found that Google’s conduct may deteriorate the situation of publishers and news agencies, and may lead to anticompetitive effects on the market for general search services by placing Google’s competitors, having decided to compensate publishers for the display of their content, in an asymmetrical position compared to Google.
The interim measures ordered by the FCA
The FCA found that Google’s behaviour created a serious and immediate risk for the French press sector that justified interim measures.
Pending a decision on the merits, the FCA imposed seven injunctions on Google to allow publishers and news agencies to negotiate with Google the terms and conditions for displaying their protected content and the associated remuneration.
In particular, Google must negotiate in good faith with any publishers and news agencies which request remuneration for the display of protected content by Google on the basis of transparent, objective and non-discriminatory criteria. To ensure the effectiveness of this injunction, the FCA ordered Google to provide publishers and news agencies with the information necessary for a transparent assessment of adequate remuneration.
Google must also take measures to ensure that the existence and the outcome of these negotiations do not affect the indexing, ranking, or presentation of the protected content at stake on Google’s services.
The FCA indicated that the injunctions will remain into force until the publication of the FCA’s decision on the merits.
 FCA Decision of April 9, 2020, N°20-MC-01.
 The Law transposes Article 15 of Directive N°2019/790 of April 17, 2019, which provides for the creation of copyright-related rights to the benefit of publishers, by giving them the right to authorize or prohibit the reproduction of their publications by platforms, aggregators, and search engines. Directive (EU) 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market, OJ 2019 L 130/92. The Directive resulted in the creation of Articles L. 218-1 and seq. of the French Code of Intellectual Property (“CIP”). In particular, Article L. 218-2 of the CIP provides that publishers and news agencies should give their prior consent for the use and reproduction of their content by an online public communication service.
 Decision, para. 102.
 Decision, paras 292-316.