In a press release dated December 15, 2021, the French Competition Authority (the “FCA”) announced the opening of a public consultation on Google’s proposed commitments in the “related rights” case. These commitments seek to address the preliminary competition concerns expressed by the FCA Investigation Services, who are still pursuing the proceedings on the merits following an interim measures decision issued in April 2020.
EU Directive No. 2019/790 aims at recognizing the financial contribution of publishers in producing press publications through the creation of a right to authorize or prohibit the reproduction of “protected content” (such as text extracts, images, and videos) by platforms, aggregators, and search engines. In anticipation of the entry into force of the French Law transposing the directive, Google offered to the publishers to either stop displaying protected content in its search engine, or authorize the reproduction of such content free of charge.
In November 2019, trade associations representing press publishers as well as Agence France-Presse referred the case to the FCA, leading to the imposition of interim measures in April 2020. In parallel, the FCA continued its investigation into the merits of the case. In this context, the FCA expressed its concern that Google may have relied on its likely dominant position in the market for generalist search services to impose unfair and discriminatory trading conditions on publishers and news agencies in the context of its implementation of Law of July 24, 2019 transposing the directive.
Google’s proposed commitments
In response to the FCA’s competition concerns, Google has offered to implement the following six commitments:
- Negotiate the remuneration of press publishers and news agencies for any reproduction of protected content in good faith, in a transparent and non-discriminatory manner;
- Communicate to press publishers and news agencies the information necessary for a transparent assessment of the proposed remuneration;
- Continue to display the concerned contents within its search engine services while negotiations are ongoing;
- Submit a proposal for remuneration within three months of the start of negotiations. Should no agreement be found regarding the amount of remuneration by the end of the negotiation period, the negotiating parties will have the option to refer the matter to an arbitration tribunal, whose fees will be paid by Google;
- Guarantee that the conduct of negotiations does not affect the indexing, classification, or presentation of protected contents within Google’s services; and
- Ensure that the negotiations do not impact other economic relationships that might exist between Google and the press publishers and news agencies.
The proposed remedies would apply for a period of five years, and an independent trustee would oversee their implementation. The FCA is currently carrying out a market test to determine whether these commitments effectively address its competition concerns. Interested parties, publishers, and news agencies must submit their comments by January 31, 2022.
 Directive (EU) 2019/790 of the European Parliament and of the Council of April 17, 2019, on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.
 Law No. 2019-775 of July 24, 2019, creating a related right for the benefit of news agencies and press publishers (the “Law of July 24, 2019”).
 FCA Decision No. 20-MC-01 of April 9, 2020, relating to requests for interim measures by the Syndicat des éditeurs de la presse magazine, the Alliance de la presse d’information générale and others, and Agence France-Presse. Decision No. 20-MC-01 was mostly confirmed by the Paris Court of Appeals in a ruling dated October 8, 2020 (Société Google e.a., No. 20/08071).