Google drops appeal against €500M antitrust news licensing fine

Google has quietly dropped its appeal in France against an antitrust fine of half a billion euros levied against it last summer for major breaches in how it negotiated to remunerate local news publishers for displaying copyrighted content.

A major reform to European Union rules around digital copyright which was agreed back in 2019 — and transposed into French law soon afterwards — created a new right covering reuse of snippets of news content.

Google responded to the change of law in France by first seeking to evade payment by stopping displaying such snippets in products like its news aggregator. But the country’s antitrust watchdog stepped in in 2020 — suspecting that Google’s unilateral act constituted an abuse of market power and ordering it to pay publishers for the content reuse.

Google then sought to cut deals with French publishers but this quickly led to complaints over how it was negotiating — such as by withholding key info and seeking to press publishers into bundling neighbouring rights payments into licensing terms for a News Showcase product Google had devised — so Google’s actions attracted another intervention by the regulator; and, in July 2021, a $592M penalty for abusive negotiation practices.

The tech giant called the fine “disproportionate” when it filed its appeal against the Autorité de la Concurrence‘s sanction last fall.

However now it’s agreed to withdrawn the appeal. The development comes as the French competition regulator said today that it’s accepting behavioral pledges first offered by Google back in December as it sought to settle the antitrust action — which suggests that Google dropping the appeal forms a part of the full settlement that’s been announced today.

“Google undertakes to withdraw its appeal against the decision not to comply with the injunctions. The fine of 500 million euros imposed by the Autorité on July 12, 2021 therefore becomes final,” L’Autorité wrote in a press release [translated from French with machine translation].

In its own blog post about the settlement, Google doesn’t make mention of withdrawing the appeal — instead, it spins its commitments being accepted as drawing a line under a problematic chapter for its business.

“Today, the Autorité de la Concurrence accepted our commitments, which frame the way in which these negotiations [over reuse of news publishers’ content] will be conducted for the coming years,” wrote Sébastien Missoffe, managing director and VP, Google France. “An independent trustee will be appointed and will be responsible for monitoring the proper execution of the commitments. These commitments illustrate our desire to move forward and to remunerate publishers and press agencies for their neighboring rights.”

What exactly has Google agreed to? The commitments that have been accepted by the French regulator now are a beefed up version of the ones Google initially offered at the end of last year.

The regulator said Google has committed to undertake good faith negotiations with news publishers who request talks over remuneration for their content under the law — applying “transparent, objective and non-discriminatory criteria”.

This includes agreeing to pass key information to publishers in a timely fashion (e.g. the number of impressions and click-through rate of their protected content on Google Search, Google News and Google Discover; plus data relating to Google’s revenues in France); and agreeing to pass to an independent agent relevant additional info that publishers may request (a structure which looks intended to workaround concerns of Google’s confidential info being too directly shared).

The framework commits the tech giant to make a compensation proposal within three months of the start of negotiations with a publisher.

If there is disagreement the framework allows for an arbitration tribunal to determine the amount Google must pay.

Google has explicitly agreed to keep separate terms with publishers to license legally protected content — so not to seek to bundle this type of content licensing into terms of any other Google media product (such as its News Showcase vehicle), as it previously attempted.

L’Autorité also notes that Google has agreed to extend the scope of its commitments to cover publishers it had previously sought to exclude, including press agencies.

Google’s blog post talks up the number of deals it has inked with French publishers in the interim — with the tech giant writing that it has “agreements with more than 150 press publications in France”.

However, as the regulator points out, the terms of the negotiation framework it’s agreed to mean publishers are not bound to any contracts they previously inked with Google — and are instead free to renegotiate terms with the benefit of the new framework in place if they so wish (though existing contracts will apply until replaced by any new deals).

Google has also undertaken not to take what would amount to retaliatory measures against publishers — committing that negotiations do not affect the indexing, classification or presentation of protected content; and do not affect the other economic relations that may exist between Google and press publishers and press agencies, per L’Autorité.

The commitments are now made compulsory for a period of five years — with the possibility of being renewed for a further five years, under the discretion of the regulator.

An approved independent agent will monitor Google’s application and oversee its negotiations with publishers. This (as yet unnamed) agent will have an active role in settling potential disputes by issuing opinions and proposals to the L’Autorité — which Google has agreed to be bound by (although publishers remain free to pursue alternative legal means to settle disputes if they wish).

Commenting in a statement, Benoît Cœuré, president of L’Autorité, said the regulator welcomes — “on the merits” — the commitments made by Google following its intervention and sanction, adding: 

“The combination of these different means of action now makes it possible to create an environment offering greater stability and guarantees of fairness for publishers and press agencies. For the first time in Europe, the commitments made by Google provide a dynamic framework for negotiation and sharing of the information necessary for a transparent assessment of the remuneration of direct and indirect related rights. This framework will improve evaluation methods and facilitate the transmission by Google of the information necessary for them.”

The news reuse issue doesn’t only apply to Google’s French operations; the EU copyright reform will apply across the bloc once all Member States have transposed the regulation into national law — hence the framework agreed in France is likely to form a template for other negotiations with regional news publishers. (Per Google’s blog, the company has inked agreements with over 650 publications so far — albeit, it may face having to redo terms based on what it’s agreed to in France if publishers elsewhere decide they want a better deal.)

Beyond the EU, Google’s licensing negotiations with publishers in Australian are also regulated after the country passed its own news code bargaining law early last year.

While the UK also appears to be considering similar legislation to support publishers as it works on a reboot of domestic competition rules wrapping tech giants. Although there’s no near term prospect of a change after the government delayed bringing legislation forward.

However the UK’s competition watchdog has said it will make full use of its existing powers in the meanwhile — which, in recent years, has included obtaining a set of commitments from Google over how it will remove support for tracking cookies in Chrome and install alternative adtech.

Germany’s competition watchdog, meanwhile, has been investigating Google’s News Showcase licensing product since last summer — following complaints over a planned integration into Google’s general search function look likely to be self-preferencing and/or unfairly disadvantage competing services offered by third parties.

That German FCO probe remains ongoing. But in January Google offered to limit how the News Showcase ‘story panels’ would appear in search results in the market — shortly after the country’s competition watchdog determined it can apply special abuse controls to Google.

The short story of all these antitrust interventions is that Big Tech’s T&Cs are gradually being reshaped by forces outside their control. And — notably — it’s international regulators doing the running at the vanguard of this enforced reboot.

Facebook agrees terms to pay French publishers for news reuse

Facebook has reached a multi-year agreement to pay French publishers for resharing their content on its platforms, it announced today.

The social media giant said the licensing agreement with the Alliance of national and regional newspapers “means that people on Facebook will be able to continue uploading and sharing news stories freely amongst their communities, whilst also ensuring that the copyright of our publishing partners is protected.”

Facebook declined to specify how much it’s paying for the arrangement with l’Alliance de la presse d’information générale (APIG) in France when we asked. But in a blog post trumpeting the deal it wrote: “After constructive negotiations, this solution will further our investment in the news industry, and strengthen the news experience for both people and publishers on Facebook.”

The blog post also specifies that it will be investing “at least” a billion dollars to support media companies over the next three years — however that’s a collective pot not a France-only pot. So who is getting what exactly — and where — remains unclear.

Facebook’s largesse in France is not voluntary: The development relates to EU law which was updated to reform digital copyright rules back in 2019 to, among other tweaks, extend neighbouring rights to snippets of publishers’ content in response to criticism from the newspaper industry that adtech giants were freeloading off quality journalism that users of their platforms share.

France has been at the forefront of transposing the EU’s digital copyright reform into national law but the amended rules are set to apply across the bloc — so adtech giants like Facebook will need to strike multiple deals to cover the region. Hence that “at least” $1BN pot.

Google, meanwhile, already reached a deal with news publishers in France at the start of this year.

However it quickly came under scrutiny by the country’s competition watchdog over how it had approached negotiations with publishers. And this summer the French authority fined Google $592M for breaching an order related to the process — accusing it of failing to conduct good faith negotiations and withholding key information relevant to determine payments.

France’s competition watchdog was also unhappy that Google tried to unilaterally impose terms on publishers, seeking to push them to agree to a global news licensing product it has devised, called Publisher Curated News, rather than negotiate local terms, as the law requires.

It’s not clear if the authority’s aggressive enforcement against Google concentrated minds at Facebook to ink its own deal with French publishers — not least because the amount it’s paying for content resharing isn’t being disclosed — but it probably helped.

The French publishing alliance group who’s members have agreed terms with Facebook said only that the deal would generate “significant financing”, particularly emphasising the revenue uplift it would generate for its smallest members.

“This first step in the concrete implementation of neighboring rights shows that solidarity between publishers is key to efficiently defend their interests,” added Pierre Louette, chairman of the Alliance and CEO of Groupe Les Echos – Le Parisien, in a statement.

Also today, Facebook announced that it will be launching a French news service in January — which it said will give users “a dedicated space to access content from trusted and reputable news sources” — dialling up its efforts to showcase professional journalism on its platform as a direct result of legislation requiring it to pay for new reuse.

It’s a far cry from recent events in Australia — where, earlier this year, lawmakers were debating similar legislation related to paying for news content aggregation and reuse. And during that legislative push Facebook temporarily shut down news sharing in the county altogether — along with a whole bunch of other bona fide information sources, seemingly as a sort of ‘chaotic evil’ lobbying strategy to try to scare the country’s lawmakers into abandoning the idea.

What actually happened, though, was Australian lawmakers went ahead and passed a news bargaining code that applies to Facebook and Google this February.

And deals to pay for content reuse in Australia were duly struck between the pair and a number of publishers and broadcasters down under.

So the writing seems to be on the wall for adtech platforms getting a free pass to monetize attention generated by professional news content that’s passing over their platforms. As other countries outside the EU see big tech’s wallet being unlocked to pay for news reuse through changes to the law they will surely follow.

But as steady payments flow from tech giants to newsrooms — last year Google also announced a $1BN pot to pay for news licensing — democracy watchers may have reason to be concerned about dominant Internet platforms becoming a revenue source for a ‘free press’.

Both Google and Facebook are certainly wasting no time milking the publicity opportunity — suddenly claiming their platforms can now be relied upon as sources of “trusted and reliable news”. (Instead of, y’know, the outrage-driving clickbait and disinformation they have so often been found amplifying for a profit.)

“Our partnership with Alliance proves the benefits of a strong collaboration,” gushes Facebook’s blog post. “Likewise, we’ve been encouraged by the progress that’s been made elsewhere in Europe, and we hope for continued, constructive conversations.”

Developments it points to on that front are the recent launch of Facebook News in Germany, with new partners including Axel Springer, Frankfurter Allgemeine Zeitung, Handelsblatt and Tagesspiegel.

In the U.K., it also notes that it has entered into agreements with a number of publishers, including Conde Nast, The Economist, Guardian Media Group and Hearst.


Google must negotiate to pay for French news, appeals court confirms

Google’s appeal against an order by France’s competition watchdog to negotiate with publishers for reuse of snippets of their content has failed.

As we reported in April, the French authority was acting on a new ‘neighbouring right’ for news which was transposed into national law following a pan-EU copyright reform agreed last year.

The Paris court slap-down leaves little legal wiggle room for the tech giant when it comes to shelling out for reusing French publishers’ content.

France’s competition authority already ruled it can’t unilaterally withdraw the snippets shown in its Google News aggregator (and elsewhere on its search service) — as it did when the national law came into force, seeking to evade payment.

Reached for comment on the appeal court decision, a Google spokesperson sent us this statement: “As we announced yesterday, our priority remains to reach an agreement with the French publishers and press agencies. We appealed to get legal clarity on some parts of the order, and we will now review the decision of the Paris Court of Appeal.”

The company also told us it had appealed the interim measures ruling because it had concerns about aspects of the order that it found contradictory and confusing, adding that it continues to have significant concerns with respect to how publisher rights are being interpreted in the country. Although it also reiterated that the legal process is separate to its ongoing negotiations with French publishers which it said it continues to focus on.

A report by Reuters yesterday suggested Google is poised to strike a deal with French publishers.

Earlier this month the tech giant announced a $1BN licensing fees fund, which it has called the Google News Showcase, that it said would be paid to news publishers “to create and curate high-quality content” for new story panels to appear on Google News. It added that it would begin making payments in Germany and Brazil, expanding to other markets.

However that (Google PR) initiative is separate to the payment terms it will have to negotiate with French publishers as a result of a legal requirement for reuse of protected content.

The screw is also tightening on Google’s freebie reuse of news in Australia which is closing in on its own legally binding payment framework — triggering a warning from the tech giant that local access to its ‘free’ services may be at risk.

France’s competition watchdog orders Google to pay for news reuse

France’s competition authority has ordered Google to negotiate with publishers to pay for reuse of snippets of their content — such as can be displayed in its News aggregation service or surfaced via Google Search.

The country was the first of the European Union Member States to transpose the neighbouring right for news into national law, following the passing of a pan-EU copyright reform last year.

Among various controversial measures the reform included a provision to extend copyright to cover content such as the ledes of news stories which aggregators such as Google News scrape and display. The copyright reform as a whole was voted through the EU parliament in March 2019, while France’s national law for extended press publishers rights came into force in October 2019.

A handful of individual EU Member States, including Germany and Spain, had previously passed similar laws covering the use of news snippets — without successfully managing to extract payments from Google, as lawmakers had hoped.

In Spain, for example, which made payments to publishers mandatory, Google instead chose to pull the plug on its Google News service entirely. But publishers who lobbied for a pan-EU reform hoped a wider push could turn the screw on the tech giant.

Nonetheless, Google has continued to talk tough over paying for this type of content.

In a September 2019 blog post the tech giant dug in, writing — without apparent irony — that: “We sell ads, not search results, and every ad on Google is clearly marked. That’s also why we don’t pay publishers when people click on their links in a search result.”

It has also since changed how Google News displays content in France, as Euractiv reported last year — switching to showing headlines and URLs only, editing out the text snippets it shows in most other markets.

However France’s competition authority has slapped down the tactic — taking the view that Google’s unilateral withdrawal of snippets to deny payment is likely to constitute an abuse of a dominant market position, which it writes “seriously and immediately damaged the press sector”.

The company has a dominant position in Europe’s search market — with more than 90% marketshare.

The authority cites Google’s unilateral withdrawal of “longer display article extracts, photographs, infographics and videos within its various services (Google Search, Google News and Discover), unless the publishers give it free authorization” as unfair behavior.

“In practice, the vast majority of press publishers have granted Google licenses for the use and display of their protected content, and this without possible negotiation and without receiving any remuneration from Google. In addition, as part of Google’s new display policy, the licenses which have been granted to it by publishers and press agencies offer it the possibility of taking up more content than before,” it writes in French (which we’ve translated via Google Translate).

“In these conditions, in addition to their referral to the merits, the seizors requested the order of provisional measures aimed at enjoining Google to enter in good faith into negotiations for the remuneration of the resumption of their content.”

Hence issuing an emergency order — which gives Google three months to negotiate “in good faith” with press agencies and publishers to pay for reusing bits of their content.

Abusive practices the agency says it suspects Google of at this stage of its investigation are:

  • The imposition of unfair trading conditions;
  • circumvention of the law;
  • and discrimination (i.e. because of its unilateral policy of zero renumeration for all publishers)

The order requires Google to display news snippets during the negotiation period, in accordance with publishers wishes.

While terms agreed via the negotiation process will apply retrospectively — from the date the law came into force (i.e. last October).

Google is also required to send in monthly reports on how it’s implementing the decision.

“This injunction requires that the negotiations actually result in a proposal for remuneration from Google,” it adds.

We reached out to Google for comment on the Autorité de la Concurrence’s action. In a statement attributed to Richard Gingras, its VP News, the company told us:

Since the European Copyright law came into force in France last year, we have been engaging with publishers to increase our support and investment in news. We will comply with the FCA’s order while we review it and continue those negotiations.

A Google spokeswoman also pointed back to its blog post from last year — to highlight what she described as “the ways we already work with news publishers for context”.

In the blog post the company discusses directing traffic to news sites; providing ad tech used by many publishers; and a funding vehicle via which it says it’s investing $300M “to help news publishers around the world develop new products and business models that fit the different publishing marketplace the Internet has enabled”.

Interim measures are an antitrust tool that Europe’s competition authorities have pulled from the back of the cupboard and started dusting off lately.

Last October EU competition chief Margrethe Vestager used an interim order against chipmaker Broadcom to stop applying exclusivity clauses in agreements with six of its major customers — while an investigation into its practices continues.

The commission EVP, who also heads up the bloc’s digital strategy, has suggested she will seek to make greater use of interim orders as an enforcement tool to keep up with the fast pace of developments in the digital economy, responding to concern that regulators are not able to respond effectively to curtail market abuse in the modern Internet era.

In the case of France’s competition authority’s probe of Google’s treatment of publishers content the authority writes that the interim protective measures it’s ordered will remain in force until it adopts its decision “on the merits”.

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Europe takes another step towards copyright pre-filters for user generated content

In a key vote this morning the European Parliament’s legal affairs committee has backed the two most controversial elements of a digital copyright reform package — which critics warn could have a chilling effect on Internet norms like memes and also damage freedom of expression online.

In the draft copyright directive, Article 11; “Protection of press publications concerning online uses” — which targets news aggregator business models by setting out a neighboring right for snippets of journalistic content that requires a license from the publisher to use this type of content (aka ‘the link tax’, as critics dub it) — was adopted by a 13:12 majority of the legal committee.

While, Article 13; “Use of protected content by online content sharing service providers”, which makes platforms directly liable for copyright infringements by their users — thereby pushing them towards creating filters that monitor all content uploads with all the associated potential chilling affects (aka ‘censorship machines’) — was adopted by a 15:10 majority.

MEPs critical of the proposals have vowed to continue to oppose the measures, and the EU parliament will eventually need to vote as a whole.

EU Member State representatives in the EU Council will also need to vote on the reforms before the directive can become law. Though, as it stands, a majority of European governments appear to back the proposals.

European digital rights group EDRi, a long-standing critic of Article 13, has a breakdown of the next steps for the copyright directive here. It’s possible there could be another key vote in the parliament next month — ahead of negotiations with the European Council, which could be finished by fall. A final vote on a legally checked text will take place in the parliament — perhaps before the end of the year.

Derailing the proposals now essentially rests on whether enough MEPs can be convinced it’s politically expedient to do so — factoring in a timeline that includes the next EU parliament elections, in May 2019.

Last week, a coalition of original Internet architects, computer scientists, academics and supporters — including Sir Tim Berners-Lee, Vint Cerf, Bruce Schneier, Jimmy Wales and Mitch Kapor — penned an open letter to the European Parliament’s president to oppose Article 13, warning that while “well-intended” the requirement that Internet platforms perform automatic filtering of all content uploaded by users “takes an unprecedented step towards the transformation of the Internet from an open platform for sharing and innovation, into a tool for the automated surveillance and control of its users”.

“As creators ourselves, we share the concern that there should be a fair distribution of revenues from the online use of copyright works, that benefits creators, publishers, and platforms alike. But Article 13 is not the right way to achieve this,” they write in the letter.

“By inverting this liability model and essentially making platforms directly responsible for ensuring the legality of content in the first instance, the business models and investments of platforms large and small will be impacted. The damage that this may do to the free and open Internet as we know it is hard to predict, but in our opinions could be substantial.”

The Wikimedia Foundational also blogged separately, setting out some specific concerns about the impact that mandatory upload filters could have on Wikipedia.

“[A]ny sort of law which mandates the deployment of automatic filters to screen all uploaded content using AI or related technologies does not leave room for the types of community processes which have been so effective on the Wikimedia projects,” it warned last week. “As previously mentioned, upload filters as they exist today view content through a broad lens, that can miss a lot of the nuances which are crucial for the review of content and assessments of legality or veracity.”

More generally critics warn that expressive and creative remix formats like memes and GIFs — which have come to form an integral part of the rich communication currency of the Internet — will be at risk if the proposals become law…

Regarding Article 11, Europe already has experience experimenting with a neighboring right for news, after an ancillary copyright law was enacted in Germany in 2013. But local publishers ended up offering Google free consent to display their snippets after they saw traffic fall substantially when Google stopped showing their content rather than pay for using them.

Spain also enacted a similar law for publishers in 2014, but its implementation required publishers to charge for using their snippets — leading Google to permanently close its news aggregation service in the country.

Critics of this component of the digital copyright reform package also warn it’s unclear what kinds of news content will constitute a snippet, and thus fall under the proposal — even suggesting a URL including the headline of an article could fall foul of the copyright extension; ergo that the hyperlink itself could be in danger.

They also argue that an amendment giving Member States the flexibility to decide whether or not a snippet should be considered “insubstantial” (and thus freely shared) or not, does not clear up problems — saying it just risks causing fresh fragmentation across the bloc, at a time when the Commission is keenly pushing a so-called ‘Digital Single Market’ strategy.

“Instead of one Europe-wide law, we’d have 28,” warns Reda on that. “With the most extreme becoming the de-facto standard: To avoid being sued, international internet platforms would be motivated to comply with the strictest version implemented by any member state.”

However several European news and magazine publisher groups have welcomed the committee’s backing for Article 11. In a joint statement on behalf of publishing groups EMMAENPAEPC and NME a spokesperson said: “The Internet is only as useful as the content that populates it. This Publisher’s neighbouring Right will be key to encouraging further investment in professional, diverse, fact-checked content for the enrichment and enjoyment of everyone, everywhere.”

Returning to Article 13, the EU’s executive, the Commission — the body responsible for drafting the copyright reforms — has also been pushing online platforms towards pre-filtering content as a mechanism for combating terrorist content, setting out a “one hour rule” for takedowns of this type of content earlier this year, for example.

But again critics of the copyright reforms argue it’s outrageously disproportionate to seek to apply the same measures that are being applied to try to clamp down on terrorist propaganda and serious criminal offenses like child exploitation to police copyright.

“For copyrighted content these automated tools simply undermine copyright exceptions. And they are not proportionate,” Reda told us last year. “We are not talking about violent crimes here in the way that terrorism or child abuse are. We’re talking about something that is a really widespread phenomenon and that’s dealt with by providing attractive legal offers to people. And not by treating them as criminals.”

Responding to today’s committee vote, Jim Killock, executive director of digital rights group, the Open Rights Group, attacked what he dubbed a “dreadful law”, warning it would have a chilling effect on freedom of expression online.

“Article 13 must go,” he said in a statement. “The EU Parliament’s duty is to defend citizens from unfair and unjust laws. MEPs must reject this law, which would create a Robo-copyright regime intended to zap any image, text, meme or video that appears to include copyright material, even when it is entirely legal material.”

Also reacting to the vote today, Monique Goyens, director general of European consumer rights group BEUC, said: “The internet as we know it will change when platforms will need to systematically filter content that users want to upload. The internet will change from a place where consumers can enjoy sharing creations and ideas to an environment that is restricted and controlled. Fair remuneration for creators is important, but consumers should not be at the losing end.”

Goyens blamed the “pressure of the copyright industry” for scuppering “even modest attempts to modernise copyright law”.

“Today’s rules are outdated and patchy. It is high time that copyright laws take into account that consumers share and create videos, music and photos on a daily basis. The majority of MEPs failed to find a solution that would have benefitted consumers and creators,” she added in a statement.