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10 April 2020
In November 2019, the Agence France Presse (AFP) and two press publishing syndicates (Alliance de la presse d'information générale and Syndicat des éditeurs de presse magazine, or SEPM) filed a complaint with the French Competition Authority and requested the implementation of precautionary measures against Google regarding the search engine's practices since the enforcement of press agency and publisher new neighbouring rights (Law no. 2019-775 of 24 July 2019 transposing into French law a European directive of 17 April 2019).
In its decision 20-MC-01 of 9 April 2020, the French Competition Authority acceded to the requests of the AFP and press publishers, recognising in particular that Google's practice of no longer displaying press content protected by neighbouring rights except by demanding that it be free constituted, on the one hand, a circumvention of the wishes of European and French legislators and, on the other hand, placed publishers and press agencies in a situation requiring them to waive that new right to remuneration in order to maintain Internet users' traffic to their own websites, in view of Google's dominance as a search engine.
Considering that this behaviour was liable to be deemed as abuse of dominant position, and considering the serious and immediate damage caused to the press sector, the Authority listed several precautionary measures and ordered Google to enter within the coming three months into negotiations in good faith with those publishers and press agencies requesting it to define the terms of a balanced remuneration; to maintain, during these negotiations and until a decision is taken, the arrangements for the display of press content as they existed previously; and to report to the Authority on the progress of the negotiations that are about to begin. The remuneration decided upon in this way will be applied retroactively to the date of entry into force of the neighbouring rights law.
France is the first country to have transposed press agency and publisher neighbouring rights established by Directive 2019/790. Undoubtedly, this decision by the French Competition Authority will inspire other Member States when transposing the Directive in their own laws.
AFP was represented by Gide, with partner Antoine Choffel (competition law) and counsel Julien Guinot-Deléry (media law). Latham & Watkins advised Alliance de la presse d'information générale and Darrois Villey Maillot Brochier advised SEPM. Google was advised by Allen & Overy.
