Google’s Fine from French Regulator Reignites Discussion Around AI Use and Fair Compensation for Journalists, even as Google Continues Pushback on the JCPA

The recent fine is the latest in the French government’s efforts to enforce a law, adopted in 2019, that provides publishers and press agencies with the right to negotiate with large online platforms that use their content. The law requires online service providers to obtain authorization from publishers of online news before reproducing content in a digital form and enables publishers to be compensated for reproduction of their work by online service providers.

According to the Autorité, this latest fine is the fourth decision issued against Google in the last four years. The Autorité previously issued injunctions against Google for failing to adhere to the French law, and then imposed fines of more than € 500 Million when Google failed to comply with the terms of the injunctions.

After the injunction violations, a third-party monitor, Accuracy, was appointed to ensure Google complied with its renewed commitments to the Autorité. These commitments required Google to, among other things, negotiate in good faith with press agencies and publishers and allow such agencies to be compensated if Google re-used their work.

The Autorité issued this latest fine after it discovered that Google had breached its commitment to cooperate with Accuracy, and, more specifically, failed to comply with specific commitments Google made to the Autorité, including failing to negotiate in good faith, based on transparent, objective and non-discriminatory criteria.

The Autorité found that Google was not acting in good faith when it used its AI chatbot, “Bard,” since rebranded as “Gemini,” to scrape content off news media sites and its publishers to train its AI model, without notifying either the publishers or the Autorité. This lack of notification left news media sites and publishers with no recourse to negotiate remuneration. Further, the lack of a simple opt-out option meant publishers could not even decide if Google could display their content, let alone negotiate how their content could be displayed by Google’s services. Although the question of whether the use of news content as part of an AI services is protected has not yet been settled, the Autorité said Google’s failure to inform the publishers that it was using their content for AI violated Google’s commitments to act in a transparent, non-discriminatory manner.

Google did not contest the findings in this most recent instance of non-compliance. It agreed to pay the €250 Million fine but stated that the amount was disproportionate to the violations identified. Google also said it has put corrective measures in place to address the issues identified by the Autorité.

Efforts to enact similar legislation to the European law are ongoing in the United States. The Journalism Competition and Preservation Act (JCPA) was first introduced in the last Congress and was reintroduced in 2023. The JCPA would permit eligible news organizations to negotiate collectively with online platforms (Facebook, Google and others), allowing news publishers to be fairly compensated for their content. The bill has bipartisan support. Similar legislation has also been introduced in some states, including California and Illinois.

Don’t expect Google to sit quietly if the JCPA passes. The tech giant posted on its blog last Friday that it’s “testing” the effects of removing links to California news websites in reaction to proposed state legislation requiring Big Tech companies to pay news outlets for their content. Internationally, Google has been wrestling for months with both Canadian and Australian governments which enacted similar laws to California’s proposed bill that require online platforms to pay for publishers’ content.

Regulators around the world are increasingly recognizing the importance of journalism and its critical role for maintaining informed and active citizens. In the US, the lack of compensation from online platforms is contributing to the demise of local news outlets in many communities,  creating an increasing number of local news deserts. Efforts to enforce existing laws that allow news publishers to be fairly compensated for their content and to pass laws in other countries, including the United States, are important to countering these trends.

This article was written by Shannon P. Sylvester and Sally A. Buckman. Sylvester is an Associate and Buckman is a Member in the Media Practice Group at Lerman Senter, PLLC. Lerman Senter is a specialized Washington DC law firm that advises clients in the media, technology, and telecommunications industries.