Paris Court of Appeal upholds interim measures order on Google

On 8 October 2020, the Paris Court of Appeal rejected Google's challenge to the French Competition Authority's ("FCA") decision compelling Google to negotiate "neighbouring rights" with news agencies and press publishers. "Neighbouring rights" include the right to receive payment when a publisher's content is reused online.

In the context of the implementation of directive n°2019/790 on copyright and neighbouring rights into French law, Google unilaterally decided to stop displaying short abstracts, or "snippets", of press articles unless press publishers and news agencies allow it to display these snippets for free.

Following several complaints, on 9 April 2020 (decision n°20-MC-01), the FCA imposed interim measures on Google, alleging that its refusal to enter into negotiations in relation to payment for the use of the publishers' editorial content may amount to an abuse of a dominant position as well as an abuse of economic dependence.  In its decision, the FCA notably compelled Google to negotiate in good faith such payment with press publishers and news agencies who seek it.

On 8 October 2020 (judgment n°20/08071), the Paris Court of Appeal upheld the FCA's decision.  First, the Court held that Google is dominant on the market for online general search (with a market share around 90%) and may prima facie have imposed unfair trading conditions which would constitute an exploitative abuse of a dominant position.  Google's arguments, relating to the absence of a causal link between Google's actions and a reduction of online traffic on press publishers' websites, and the absence of anticompetitive effects, were rejected.

Second, the Court found that the alleged infringement caused serious, urgent and immediate harm to the press sector.  In that context, the Court considered that most of the interim measures imposed by the FCA were both necessary and proportionate.  However, the Court modified one of the interim measures, which was intended to ensure that the indexation, classification and presentation of protected content by Google is not affected by the negotiations.  The Court reduced the scope of this measure to ensure that Google is able to keep improving its services. 

Following the Court's decision:

• Google is required to negotiate and make an offer, but such an offer may be zero-priced, for instance when the reuse of the article by Google does not generate value or if the creation of the article did not involve any particular investment;
• Google may remove a publisher's snippets after Google has made an objective, transparent and non-discriminatory offer for remuneration, but negotiations fail; and
• a publisher may grant Google a free licence without this being considered an abuse. The potential abuse was in Google's general refusal to negotiate, not the zero price in itself.

The Court held that Google derives a direct and indirect economic interest from the display of snippets and acknowledged that publishers get value out of the display of snippets, but that value may not be sufficient compared to publishers' investments. The Court noted that the FCA could take the value of the referral traffic into account in its investigation on the merits.

In parallel to these proceedings, discussions between Google and press publishers continue.  In September 2020, a complaint was brought by news agencies and press publishers before the FCA alleging that Google had infringed the FCA's decision by not negotiating in good faith.  On 1 October 2020, Google announced that it would unveil a USD 1 billion package in the next three years to support press publishers around the world.

With thanks to Anne Dos of Ashurst for her contribution.