France: Google loses in appeal and must negotiate with press publishers

The competition authority in France has ruled on 8th October against Google confirming in appeal that Google must open talks with press publishers about paying to use their content.

The ruling significantly strengthens the position of press publishers to work out a sustainable payment model with Google rather than just a one-time only payment - that would be Google's prefered solution.

The decision of the Appeal Court of Paris sets out clearly that:

• The search market is the relevant market and, with a market share of 90%, Google is dominant on this market ;
• Publishers are dependant on Google for their traffic to their website
  ("non-substitutable nature" of traffic generated) ;
• Google has steadily claimed that it will not pay for referencing and has refused to enter into negotiation with press publishers ;
• Google wilfully changed the format display in Google News to contravene the new press publishers right ;
• As a consequence Google abused of its dominant position on this market by imposing "conditions equivalent to a free licence" to press publishers.

The Court recognises in # 99. that the law of 2019 on press publishers rights is aimed at "press publishers and press agencies" so that (sic.) "it is futile to claim, as Google does, that the AFP cannot directly claim neighbouring rights, all the more so since a majority of AFP's content reproduced by the search engine are images."

It might be also noted that as a defence Google refered to the decision to the contrary opposing Google and German press publishers. The argument is swiftly discarded by the Court on the ground that both the context and the legal basis of the German decision are different.

The decision of the Court of Appeal of Paris is available here (in French) ...