MARSEILLE, France (CN) — Faced with Big Tech's failure to pay for reporting that earns platforms millions in revenue, France used a novel strategy against Google: The competition watchdog built a landmark case and recently fined the tech giant roughly $272 million for breaching its commitment to pay media outlets for their material.
While the French Competition Authority deployed a creative legal argument, underscored the importance of high-quality journalism in France and invoked bigger questions about the digital sphere in both the European Union and the United States, experts say the results of the strategy are not yet clear.
“France was one of the first countries, I think the first country, to implement the European copyrights directive,” Anne Witt, a professor and member of the EDHEC Augmented Law Institute, told Courthouse News. “And the underlying idea of this copyrights directive is not just IP rights, it's not purely economic, but very clearly the directive says journalism is under attack.”
The EU copyright rules advocate for competition, creativity and innovation, bolstered by regulations surrounding copyrights and author remuneration.
France largely operates under the legal and regulatory framework of the EU. But this case also served as an example of member states’ ability to trailblaze individual efforts within the larger EU umbrella. French regulation tends to protect individuals and smaller entities.
In this case, France argued that Google abused its position of market dominance by imposing unfair terms and conditions on publishers that violate French law, according to Witt. The approach was original and assertive.
“They used competition law because it’s an area of law that has real teeth,” she said. “The competition agencies, which are very experienced agencies, really understand markets and have real powers, investigative powers and decision powers and finding powers, and they’re stepping in to regulate novel areas of law because they’re the only ones who can do it.”
Big Tech companies are taking away revenue from media organizations' subscriptions and advertising, Witt said.
Google had made commitments in 2022 to negotiate with French news organizations, promising to offer payment within three months of receiving a copyright complaint — a year after the competition authorities hit the U.S. tech giant with a 500 million euro fine over the long-running dispute.
Organizations representing French news outlets had originally lodged a case in 2019. But the regulator said March 20 it was imposing the new fine on Google for "failing to respect" four of the seven commitments made in 2022 and not negotiating in "good faith" with news publishers.
In 2019, France introduced neighboring rights, which generally help publishers and creatives make money when their work is displayed on internet platforms, which can reap millions. Increased regulations help to level the playing field between traditional news outlets and new digital platforms.
“In France, intellectual property law is traditionally favorable to authors and creators and creative auxiliaries ... . The regulations in force are supported by this protective culture of rights holders, unlike the United States,” Armelle Fourlon, a lawyer and member of the Association of European Councils and Experts in Cinema and Audiovisual Communication, told Courthouse News by email.
France also has specific provisions around the legal status of influencers — which will have to be adapted to European legislation soon — and children’s image rights, Fourlon said.
Symbolically, the measures underscore the value that France ascribes to quality reporting.
“Democracy cannot survive without quality journalism,” Witt said. “So if everybody got their information from some kind of chat room, you know, that's problematic.”
But the real-life impact of France's initiatives is difficult to measure.
“Within the framework of the law governing press publishers, the question of its effectiveness still remains unanswered,” Fourlon said, adding that a report showed few examples of publishers getting paid for their work. "This is one of the reasons why Google has been sanctioned several times by the competition authority.”
France isn’t the only EU member state to push high-profile legislation on Big Tech companies. In 2019, Germany argued that Meta’s data collection policy was an abuse of dominance, enforcing the General Data Protection Regulation by means of competition law, according to Witt. The case made its way to the European Court of Justice and resulted in Meta charging users around $10 per month unless they agree to data collection.
The U.K. is also thinking of integrating something into their upcoming regulations on digital platform markets, which is making its way through Parliament, Witt said. The Digital Markets, Competition and Consumers Bill would “create a regime to empower the Competition and Markets Authority to regulate and increase competition in digital markets,” according to a publication by the U.K. Parliament.
The tug-of-war between media outlets and Big Tech companies extends beyond Europe. In December, The New York Times sued OpenAI and Microsoft for using their content to train its AI algorithms. France criticized Google for doing the same thing without the consent of media outlets.
Mathias le Masne de Chermont, a Paris-based lawyer with expertise in emerging technologies, believes the EU’s stringent regulations may be influenced by motives other than just protecting the media, although there has been a real EU-wide strategy to promote and regulate digital technology.
“I think that there is truly a real political issue of digital sovereignty," le Masne de Chermont told Courthouse News. "The majority of digital players are outside of France and outside the European Union and mainly in the United States. So perhaps there’s a desire for the member states of the European Union and France to regain power over the way in which digital technology is constructed through regulation.”
In the philosophical sense, le Masne de Chermont says the different approaches from the EU and U.S. could link to different conceptions of the market. France and the EU may have a less liberal vision, which advocates for some state intervention, largely to protect individual rights.
France in particular believes that individual initiatives can have limits, and sometimes regulators need to protect parties that would otherwise be weak compared to big digital players, he said.
“So I think we’re reaching a balance of power that is perhaps fairer,” le Masne de Chermont added.
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