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Google offers behavioral commitments on news payments in France to try to end costly antitrust litigation – TechCrunch

In its latest move to appease EU competition regulators, Google offered a set of commitments to France’s antitrust watchdog – in hopes of settling an expensive intervention (for it) on legally mandated payments. for viewing content snippets from news publishers.

In July, France Competition Authority fined the tech giant half a billion euros for a series of alleged breaches in the way it negotiated with news publishers to pay them for the reuse of their content.

The backstory here is that the European Union approved a reform of digital copyright rules, in 2019, which (among other changes) expands copyright law to cover snippets of content from publishers. news that was regularly reused by aggregators like Google News.

Although there was a lot of criticism of the reform at the time, the directive gave block news editors weight on Google and appears to have contributed to the adtech giant’s decision to ‘abandon its earlier hardline position – of saying it would never pay a penny for news content – in favor of creating its own content licensing product for news publishers.

However, this News Showcase product looked like a cynical attempt by Google to cheaply circumvent legal requirements by using a global news licensing vehicle to consolidate compliance with a growing number of national news content compensation laws. (see also: Australia, which passed a law earlier this year requiring Google and Facebook to enter into binding negotiations with publishers over content reuse) – and seize extensive rights to publishers’ content in the process – and this is exactly the kind of “bad faith” behavior for which Google is called in France.

France was one of the first EU Member States to transpose the Pan-European Copyright Directive into national law, and the Authority has taken an aggressive approach to enforcing complaints about Google’s compliance with the new rules.

So, for example, when Google sought to evade law enforcement in the country – by ceasing to display snippets of content from local publishers unless publishers allow it to show them for free – the watchdog cracked down on the practice, finding last year that it was likely to be an abuse of market dominance; and telling Google that it couldn’t just unilaterally remove content.

He also ordered Google to negotiate in good faith with publishers to pay for the display of their legally protected content, which gave him three months to do so. After which, following several complaints from French publishers, the Authority stepped in again to investigate Google’s behavior.

And it applied provisional measures in July, based on its preliminary concerns.

In short, the Authority considers that Google applied “unfair and discriminatory terms of payment”; and is likely to have sought to circumvent “neighboring rights” law – although his investigation continues in parallel with the intervention.

The latest development now is that the Authority has now released details of a set of commitments that Google has offered to try to resolve the survey. The watchdog is consulting on the proposals – inviting interested third parties, publishers and news agencies to submit their comments by January 31, 2022.

It will then hold a hearing with the parties concerned and could choose to close the case – if it decides that Google’s commitments are acceptable – in which case it would make them binding on Google.

It could also opt for the modification and strengthening of commitments. Google’s offer is therefore by no means the last word.

In the UK, meanwhile, the Competition and Markets Authority is undertaking a similar process regarding Google’s planned abandonment of tracking cookies to migrate to alternative ad targeting technology – with CMA currently being consulting on the commitments Google has offered around its Privacy Sandbox proposal (and in this case, if accepted, Google has said it will apply them globally) – noting the growing influence of European regulators on the future form of Big Tech.

The German Federal Cartel Office has also set up an ongoing procedure relating to the terms and conditions of Google News Showcase. So Google is likely facing more antitrust action on this front in Europe.

What does Google offer in France?

the Authority said Google has come up with the following “remedies”:

  • Google undertakes to “negotiate in good faith” with press publishers and press agencies who so request, the remuneration for any reproduction of protected content on its services according to the terms provided for in article L.218-4 of the Intellectual Property Code. (Intellectual Property Code) and according to transparent, objective and non-discriminatory criteria.
  • Google undertakes to communicate the information necessary for a transparent evaluation of the proposed compensation, as provided for in article L.218-4 of the Intellectual Property Code.
  • Google agrees to make a compensation proposal within three months of the start of negotiations;
  • In the event that the parties fail to come to an agreement, the negotiating parties will have the possibility of applying to an arbitral tribunal to determine the amount of the remuneration. Google agrees to pay the fees of the arbitrators and the arbitration proceedings at first instance;
  • Google undertakes to take the necessary measures to ensure that the negotiations do not affect the indexing, classification or presentation of protected content;
  • Google undertakes to take the necessary measures to ensure that the negotiations do not affect any other economic relationship that may exist between Google and publishers and news agencies;
  • An independent agent approved by the Authority will oversee the implementation of the commitments made and may, if necessary, call on the services of a technical, financial or intellectual property expert.
  • The commitments will apply for a period of five years.

In its own blog post on the proposals (written in French), attributed to Sébastien Missoffe, VP and CEO of Google France, Google points to recent agreements it has signed with local publishers (such as AFP) – claiming the sums represent “significant progress” in achieving a cordial agreement on the issue of news counts, while acknowledging that negotiations with other French publishers are still ongoing.

Google condenses what it offers – and what it hopes to end the costly litigation, Missoffe suggesting that the proposals “will open a new chapter in neighboring rights” – under the following three subtitles: “Specific offers on neighboring rights ”; “Respect for publishers’ choices”; and “More transparency and independent control”.

And we could perhaps still condense that to an offer of “specific, supervised respect”.

It is certainly remarkable that the two of the authority CMA’s news intervention and investigation into Google’s Privacy Sandbox led to an offer – by Google – of a monitoring administrator to verify compliance, underscoring the lack of trust advertisers and publishers have in the tech giant to do the right thing when no one is watching.

Indeed, the first set of commitments offered by Google to the CMA did not go far enough to convince the broader market that feeds Google’s advertising funds that it would be frank, which led Google to come back with strengthened commitments (in particular the offer of the supervisory agent and a slight extension of the period of execution of the commitments).

It remains to be seen whether publishers in France will settle for Google’s first offering – or also push for greater assurances that the tech giant will play a fair game on news pay.

Google, meanwhile, signs his blog post affirming that its “objective” is to “reach final agreements, in accordance with the law, and to open a new chapter with the press editors”. But the prospect of a fine of $ 592 million has undoubtedly helped to focus the spirits in Mountain View vis-à-vis respect for French law.

“Regardless of these commitments, Google will continue to invest, as we have been doing for years, in products and training to support journalism,” adds Missoffe in remarks that are of course unrelated to the specific issue of compliance. French law.

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