Facts
Law No. 2019-775 of 24 July 2019 gave press publishers and news agencies in France a related right (droit voisin). In the dispute over its remuneration the Autorité imposed interim measures on Google in 2020, fined it €500 million in 2021 and, by Decision 22-D-13 of 21 June 2022, made Google’s commitments binding. The commitments required Google to base its remuneration offers on transparent, objective and non-discriminatory criteria and to keep the negotiations from affecting its other dealings with publishers. On 13 July 2023 Google launched its Bard AI service in France; it was renamed Gemini in February 2024. In July 2023 the Autorité opened an own-initiative review of Google’s compliance. Google asked for the settlement procedure and did not contest the breaches.
Question
The Autorité had to decide whether Google had complied with the commitments made binding by Decision 22-D-13. The review covered the method for calculating remuneration, the data supplied to publishers and cooperation with the monitoring trustee. Two questions concerned AI. The first was whether Google, by not telling publishers that their content was being used to train Bard’s foundation model and to run the service, had breached the transparency obligation in Commitment 1. The second was whether giving publishers no way to stop Bard using their content without losing visibility in Google Search breached Commitment 6, which requires related-rights negotiations to be kept separate from Google’s other economic relationships with publishers.
Decision
In Decision 24-D-03 of 15 March 2024 the Autorité found that Google had breached Commitments 1, 2, 4 and 6 and its duty to cooperate with the monitoring trustee. Google had used publishers’ content to train the foundation model at least until February 2023 and, from July 2023, at the grounding and display stages, without informing them. Until Google-Extended was launched on 28 September 2023, the only way to keep content out of Bard was to block Google’s crawlers altogether, including for Search, Discover and Google News. That linked the negotiations to another service and breached the neutrality obligation. Within the range set in the settlement report, the four Google entities were fined €250 million jointly and severally.
Why it matters
The Autorité noted that whether the use of press publications in an AI service falls within the scope of related rights had not yet been settled, and it did not decide that point. The breaches rest on the transparency and neutrality obligations in Google’s competition-law commitments. The decision indicates that collecting content for AI training should not be tied to visibility in search services. The Autorité said it would keep watching Google’s collection of press content for its AI services and the effectiveness of the opt-out mechanism.
Related stages
As part of the settlement Google offered corrective measures, including a narrative summary for publishers of how Bard, and in future Gemini, uses press content in France. Google said it had settled because it was time to move on, while describing the fine as not proportionate.