On July 12, 2021,[1] the French Competition Authority (the “FCA”) imposed a €500 million fine on Google for having allegedly not complied with four of the seven injunctions imposed on the company in its April 2020 interim measures’ decision.[2] This is the highest fine ever imposed by the FCA for non-compliance with injunctions. The investigation on the merits is still ongoing.

Background

In April 2020, following a complaint lodged by several unions representing press publishers (Syndicat des éditeurs de la presse magazine, the Alliance de la presse d’information générale, and Agence France-Presse, together, the “Press Unions”), the FCA ordered several interim measures on Google. For the record, the Press Unions had alleged that Google had engaged into abusive conduct following the transposition of the copyright directive under French law, by announcing it would no longer continue to display publishers’ article excerpts in its search results pages unless the publisher granted it a free license to do so. The Press Unions had requested that Google be enjoined to engage in negotiations to remunerate publishers for displaying such article excerpts, which they consider to be protected by the copyright-related right (the “neighboring right”) introduced in 2019. At the interim measure stage, the FCA ordered a series of injunctions pending an investigation on the merits.

The interim measures required Google to engage in negotiations in good faith with any news publisher that would request remuneration for any use of its protected content within three months of the publisher’s request (“injunction one”). Google was also ordered to provide publishers with certain information so that they could assess Google’s financial offer and Google’s use of their content (“injunction two”). Google was also ordered to maintain as is the display of the excerpts during the negotiations and ensure that the negotiations do not impact other economic relations existing between Google and the publishers (“injunctions five and six”). The FCA’s decision, including the interim measures, was confirmed on appeal.[3]

In September 2020, the Press Unions lodged another complaint to the FCA, alleging that Google had breached several of these injunctions.

The FCA’s 2021 Fining Decision

In July 2021, while the investigation on the merits was (and remains) still pending, the FCA found that Google had allegedly breached several interim measures, in particular the injunction to negotiate with publishers in good faith. It fined Google 500 million euros and ordered it to comply with the allegedly breached injunctions.

In particular, regarding injunction one, the FCA considered that Google allegedly failed to negotiate “in good faith” with the Press publishers for a number of reasons. First, it found that Google held the negotiations within the framework of a new partnership, which included a new program called the Showcase service[4]. According to the FCA,

Google thereby imposed negotiations on a more global package, rather than only on the use and display of the protected content on Google’s current services.[5] Second, the FCA considered that Google had wrongfully excluded indirect revenues from the publishers’ remuneration whereas the French legislation allegedly provides for a remuneration based on both direct and indirect revenues.[6] Third, according to the FCA, Google granted a remuneration only to certain specific press contents,[7] and therefore acted in bad faith.

Fourth, the FCA considered that Google allegedly lacked of good faith by denying the press agencies a remuneration on their neighboring right, whereas the French legislation allegedly grants such right to both press publishers and press agencies.

Furthermore, the FCA considered that Google did not provide the press publishers with the information provided for by the Intellectual Property Code, and therefore allegedly breaching injunction two.

Finally, the FCA found that Google has allegedly breached injunctions five and six by linking the negotiations to the Showcase service, which could have, according to the FCA, affected the exposure of publishers not displayed in Showcase.

As a result, the FCA imposed a €500 million fine on Google and ordered it to comply with the injunctions of the April 2020 decision. In addition, the FCA ordered two new injunctions to Google (i) to present a financial offer to the Press Unions for the current use of their protected content regardless of the future displays on Showcase; and (ii) to provide them with the necessary information for evaluating such an offer. The FCA also imposed a periodic daily penalty payment of up to 300,000 euros per publisher per day of delay.

Google has filed an appeals before the Paris Court of Appeals.

According to the FCA’s website, an appeal was filed against the Decision before the Paris Court of Appeals.

[1] FCA Decision No. 21-D-17 of 12 July 12, 2021 regarding the compliance with injunctions issued against Google in Decision No. 20-MC-01 of April 9, 2020.

[2] FCA Decision 20-MC-01 of April 9, 2020 regarding requests for interim measures filed by the Syndicat des éditeurs de la presse magazine, the Alliance de la presse d’information générale and others and Agence France-Presse, see French Competition Law Review of April 2020, The FCA ordered interim measures on Google to negotiate with publishers and news agencies for displaying their contents in search results

[3] Paris Court of Appeals, October 8, 2020, Google, No. 20/08071. For completeness, the Court of Appeals slightly amended the wording of the injunction requiring Google to ensure that the opening and outcome of negotiations with publishers do not alter the display of those publishers’ article excerpts in the search results pages.

[4] Showcase is a new service in which Google remunerates selected press publishers in order to display their premium contents for free in a dedicated space.

Showcase has so far been launched in several countries, including Germany, Italy, the United-Kingdom, Argentina, Australia, Brazil, and India.

[5] Decision, §319 and following.

[6] Decision, §353 and following.

[7] According to the FCA, Google may have lacked of good faith by reducing the scope the remuneration only to press contents with a political and general information certification, i.e. a regulated certification for online press services including at least one professional journalist “whose main purpose is to provide, on a permanent and continuous basis, information, analysis and commentary on local, national or international political and general news likely to enlighten the judgment of citizens, with an interest that goes significantly beyond the concerns of one category of readers” according to Decree No. 2009-1340 of October 29, 2019 (free translation).