France fines Google €500m for repeat failure to negotiate in good faith with publishers

Alongside the €500 million fine, Google could face additional €900,000 fines per day if it continues to not provide remuneration offers to various publishers in good faith.
Written by Campbell Kwan, Contributor
Google office building in the Company's campus in Silicon Valley
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France's competition regulator has fined Google €500 million after it found the tech giant continued to not negotiate with publishers in good faith for using their content even after it was legally ordered to do so.

In April last year, Autorité de la concurrence issued injunctions requiring Google to negotiate with publishers and news agencies the remuneration owed to them. The injunctions were made after several unions representing publishers lodged complaints against the company for abusing its dominant position and ignoring EU digital copyright laws.

As part of those injunctions, Google was ordered to, within three months, conduct negotiations with publishers and news agencies on the remuneration for the re-use of their content in good faith and compliance with those laws.

Despite being issued those injunctions, the Autorité found Google did not adhere to them and continued to refuse, on several occasions, to have specific discussions on the remuneration owed to publishers for the content shown on its Showcase platform.

In a press release detailing the investigation, the Autorité said Google refused to include certain content included in publications as part of the negotiation discussions, which prevented publishers from being able to conduct neutral negotiations.

The French regulator explained that Google believes only advertising revenue from Google Search pages displaying content should be taken into account to establish the remuneration due. From the Autorité's view, however, the exclusion of income derived from other Google services and all indirect income related to such content, is contrary to copyright laws.

If Google is forced to pay the maximum penalty amount, the fine could potentially be worth more than half of the $1 billion that Google promised to dole out for partnerships with news publishers as part of its Google News Showcase.

"When the Autorité imposes injunctions on companies, they are required to apply them scrupulously, respecting their letter and their spirit. In this case, unfortunately, that was not the case," Autorité president Isabelle de Silva said.

"The fine of €500 million takes into account the exceptional seriousness of the infringements observed and how Google's behaviour has led to further delay the proper implementation of the law on related rights, which aimed to better take into account the value of content from press publishers and agencies included on the platforms."

In addition to the fine, Google will also have to provide remuneration offers to various publishers for the current use of their protected content and provide them with the necessary information for evaluating these offers.

This information includes an estimate of the total revenues it generates in France from the display of protected content on its services, indicating the share of revenue generated by the press publisher or the agency at the origin of the requested offer of remuneration.

Google will have two months to provide these offers. Any delays to providing these remuneration offers could see Google be fined an additional €900,000 per day, Autorité said.

Other major fines Google has received from French regulators in recent years include €220 million for adtech abuses last month; €100 million for dropping tracking cookies without consent back in December; and €50 million in January 2019 for not having a valid legal basis for processing people's data for advertising purposes.

Outside of France, Australia had sought to create legislation that forced digital platforms, like Google and Facebook, to use baseball arbitration, whereby platforms and publishers would both put forward a single final deal and the arbitrator would pick one, guided by a set of criteria. 

At the time, Google had threatened to pull its Search function from Australia if the law required platforms like Google to use the baseball arbitration model. 

The Australian government eventually moved on from attempting to put the baseball arbitration model into legislation, instead, passing laws in February that allow digital platforms to have commercial negotiations with publishers to join its Google News Showcase. Mandatory arbitration is only a last resort when commercial deals cannot be reached after five months of negotiations.

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