Leaked EU Communication – Part 2: Protecting Google at all costs

While the European Commission talks tough about supporting European industry, much of what is in the leaked Communication on online platforms appears to be designed to protect Google and other online giants, to the detriment of competition and European innovation.

“Fair payments” for copyright

The Communication refers obtusely to the notion of “fair” distribution of revenue for copyrighted material that is “made available” through platforms. The wording in some parts of the text appears to refer to proposals to introduce “ancillary copyright”, which is often referred to as a “Google tax”. Services like Google News use small snippets from articles to give an indication of the content of stories and publishers want to be paid for this use of their content.

Publishers put their newspapers online in order for people to read them. When people find them through Google News, this makes the publication more successful. Publishers want to be “compensated” because Google also benefits from this.

In Germany, where an “ancillary copyright” levy was imposed, local German companies have to pay to provide news aggregation services. However, since the introduction of ancillary copyright, the biggest media companies have agreed to unpaid listing on Google News. Google uses its dominance to avoid paying anything at all. Small German companies suffer. Google benefits.

In Spain, an “ancillary copyright” law was introduced, under which payments are obligatory. So, Google News left Spain completely. This means that people just go directly to the larger news outlets that they know, which undermines the accessibility of smaller outlets that are now less easy to find. Small Spanish news outlets suffer. Google doesn’t suffer.

Now the European Commission is considering this model for all of the twenty-eight countries of the European Union.

Censorship

The leaked Communication lauds the “success” of the Commission’s “EU Internet Forum“. The Internet Forum (pdf, a Commission-driven project, in cooperation with US online companies to tackle terrorist content and hate speech online) aims to develop a “code of conduct” for the processing complaints about “illegal” content (or harmful content or just breaches of terms of service) by online companies. Guess how many European companies take part in the IT Forum? Hint: The number is less than one. So, Google (with Facebook and Twitter) have the right to negotiate a baseline level responsiveness to complaints, as well as speed of censorship of illegal (and legal) content. European start-ups are not in the room, but will be expected to respect this baseline, even if this is cripplingly expensive or impractical. They do not have the economies of scale that Google does. European companies suffer. Google wins.

Liability

The European Commission threatens “sectoral” legislation on liability, in addition to the existing E-Commerce Directive, to deal with, inter alia, possible copyright infringements. Google already has advanced restrictions in place. For example, it deletes over one million links that have been accused of copyright infringements every day. Similarly, YouTube implements a process called “ContentID, a senior legal counsel at Google once (in his previous job) described as a tool to “massacre” fair use of copyrighted material. Regardless of what copyright flexibilities exist in law, ContentID allows rightsholders to delete content directly from YouTube.

In short, Google is very well equipped to deal with any new, more onerous liability obligations. Indeed, the more restrictive they are, the bigger the Google’s economy of scale and the bigger the competitive advantage that will be given to Google.

Blind faith

On dealing with illegal or unwelcome content, the Commission’s approach is quite simple, and almost beautiful in its naïveté.

It will give Google the problem of liability and the problem of public relations pressure to do “more” (with no baseline) to deal with hate speech, terrorism, child protection, copyright, etc.

The European Commission then hopes that Google, when seeking to solve these liability and public relations problems will, by coincidence, solve the Commission’s public policy problems. The Commission hopes that Google will solve these problems in a way

• which is transparent and necessary;
• which is proportionate;
• which will continue, in the medium and long term, to be effective and proportionate in an ever changing online landscape;
• which respects the rule of law;
• which respects free speech;
• which respects other jurisdictions and, of course;
• which does not involve any deliberate or accidental anti-competitive behaviour that will.

Seems reasonable.