Paris Commercial Court, interim order of April 30, 2020

Interim order to temporize the effects of excluding a company from the Adwords service (Google Ads advertisements)

Paris Commercial Court, interim order of April 30, 2020

Majordom', Digital Solutions Prod and others / Google Ireland Ltd and Google France

Google Ireland Limited (hereinafter "Google Ireland") is the main European subsidiary of Google LLC, a company founded in 1998 in California, which offers Internet users a free search engine service. Google's revenue stems in particular from the advertising it broadcasts, in particular via its “Google Ads” program, which is Google's search-related advertising program operated by Google, in particular in Europe by Google Ireland.

Google Ads is a service for the sale of advertising space that offers advertisers the possibility of displaying advertisements on the Google search engine site according to the search terms that have been typed by Internet users.

Google France is the manager in France of sponsored links.

In the remainder of the order, the companies Google Ireland and Google France will be jointly referred to as "Google" unless otherwise specified.

The plaintiffs all operate a directory inquiry service (numbers beginning with 118). These services, which have replaced the 12, offer consumers the possibility of providing them with the contact details of an individual or a professional by telephone, and putting them in touch with the number sought.

Majordom' is a supplier of the 118 818 telephone information service authorized by ARCEP.
Digital Solutions Prod is a supplier of the 118 002 and 118 300 telephone information services authorized by ARCEP.
Premium Audiotel and E-Guide Limited are or have been providers of the 118 609 telephone information service authorized by ARCEP. Their contractual relationship with Google is the subject of debate between the parties in the context of this proceeding.
Aowoa is a provider of the 118 999 telephone information service authorized by
ARCEP.

On September 11, 2019, Google announced its decision to change its terms and conditions, namely the Google Ads “Other Restricted Activities” policy, to no longer allow ads for directory inquiry, forwarding and referral services. call recording. This decision was to take effect three months later, in December 2019.

Discussions took place between the parties in September and October 2019 and Google announced in December 2019 the postponement of its action to exclude directory inquiry services from the Google Ads service in March 2020.

It is in these circumstances that the companies SAS Majordom', SAS Digital Solutions Prod, SAS Premium Audiotel, English law company E-Guide Limited, SAS Aowoa, under the terms of an order made by the president of this court in dated February 17, 2020, authorizing him pursuant to the provisions of article 485 of the CPC to summons in summary proceedings from hour to hour for the hearing of March 6, 2020, we request by act of February 21, 2020, and for the reasons stated in his request to:

Having regard to article 873 of the Code of Civil Procedure,
Having regard to article L. 420-2 of the Commercial Code,
Considering the decision of the Competition Authority of December 19, 2019 no19-D-26,
Having regard to the case law cited,
Viewed the unsigned Google announcement titled "New Policy for Directory Inquiry, Transfer, and Call Recording Services (March 2020)"
Having regard to the exhibits adduced in the proceedings,

Saying that the unsigned announcement, titled "New Policy for Directory Inquiry, Transfer and Call Recording Services (March 2020)", posted on the web page https://support.Google.com/adspolicy en September 2019 and amended in December 2019, and announcing the exclusion, without a specific date and according to unclear terms and conditions, of telephone information service companies regulated in France, from the Google Ads service (formerly "Google Adwords"), constitutes a manifestly illicit causing imminent damage to the Companies Majordom', Digital Solutions Prod, Premium Audiotel, E-Guide Limited and Aowoa within the meaning of Article 873 of the Code of Civil Procedure,

Consequently, in the state of the Google announcement entitled “New regulations on directory inquiry, transfer and call recording services (March 2020)” and as a precaution:
Order, subject to a penalty of 100,000 euros per day of delay, the companies Google France and Google Ireland Limited, the postponement of the announced measure, published in September 2019 and amended in December 2019, entitled "New regulation on telephone directory inquiry services, transfer and recording of calls (March 2020)", for the Companies Majordom', Digital Solutions Prod, Premium Audiotel, E-Guide Limited and Aowoa, for a period of six (6) months from the Order to be issued , notwithstanding the application by Google France and Google Ireland Limited of its current contract with Majordom', Digital Solutions Prod, Premium Audiotel, E-Guide Limited and Aowoa, during this time.

In any case :
Order in solidum the companies Google France and Google Ireland Limited to pay the sum of 7,000 euros respectively to the companies Majordom', Digital Solutions Prod, Premium Audiotel, E-Guide Limited and Aowoa under Article 700 of the Code of Civil Procedure as well as at all costs.

At the hearing of March 6, 2020, we postponed the case to April 3, 2020 for submissions in reply by the plaintiff.

The hearing of April 3, 2020 has been canceled due to the COVID-19 pandemic.

Pursuant to article 7 of order no. at the hearing of April 22, 2020 at 11 a.m., which was held by videoconference via the Tixeo platform. A report of the operations carried out is drawn up by the clerk.

Today, the councils of Google Ireland Limited and Google France are filing reasoned conclusions under which they ask us to:

Given the Google Ads Terms and Conditions applicable to advertisers located in the United Kingdom,
Declare itself incompetent for the benefit of the English courts with regard to the requests of the company E-Guide.

Having regard to Articles 122, 31 and 32 of the Code of Civil Procedure,
Pronounce the exoneration of Google France;
Judge that the requests of the companies E-Guide and Premium Audiotel are inadmissible.

Having regard to article 873 of the Code of Civil Procedure,
Dismiss the companies Majordom', Digital Solutions Prod, E-Guide, Premium Audiotel and
Aowoa for all of their requests.

In any case,

Condemn each of the companies Majordom', Digital Solutions Prad, E-Guide, Premium
Audiotel and Aowoa to pay the companies Google lreland and Google France the sum of
10,000 euros pursuant to article 700 of the Code of Civil Procedure;
Condemn the companies Majordom', Digital Solutions Prad, E-Guide, Premium Audiotel and
Aowoa at all costs.

The counsels of SAS Majordom', SAS Digital Solutions Prod, SAS Premium Audiotel, English company E-Guide Limited, SAS Aowoa file reasoned conclusions under which they ask us, in the latest statement of their claims, to:

Having regard to article 873 of the Code of Civil Procedure,
Having regard to article L. 420-2 of the Commercial Code,
Considering the decision of the Competition Authority of December 19, 2019 no19-D-26,
Having regard to the case law cited,
Viewed the unsigned Google announcement titled "New Policy for Directory Inquiry, Transfer, and Call Recording Services (March 2020)"
Having regard to the exhibits adduced in the proceedings,

– Declare itself competent to judge the present case,
– Declare that the requests of the companies Majordom', Digital Solutions Prod, Premium Audiotel, E-Guide Limited and Aowoa are perfectly admissible,
– Declare that the company Google France cannot be exonerated in the context of this case,
– Saying that the unsigned announcement, titled “New Regulation for Directory Inquiry, Transfer and Call Recording Services (March 2020}”,
published on the web page https://support.Google.com/adspolicy in September 2019 and modified in December 2019, and announcing the exclusion, without a specific date and according to unclear terms, of telephone information service companies regulated in France , of the Google Ads service (formerly "Google Adwords"), constitutes a manifestly unlawful disturbance causing imminent damage to the Majordom', Digital Solutions Prod, Premium Audiotel, E-Guide Limited and Aowoa companies within the meaning of article 873 of the Code of Civil Procedure,
– To note that the companies Google France and Google Ireland Limited have refused to publish, since the night of March 30 to March 31, 2020, all the announcements of the companies Majordom', Digital Solutions Prod, Premium Audiotel, E-Guide Limited and Aowoa despite of this instance and of the state of health emergency declared by the French Government due to Covid 19,

Accordingly in the state of the Google announcement entitled "New regulations on directory inquiry, transfer and call recording services
(March 2020}” implemented on the night of March 30 to 31, 2020, and as a precaution:

– Order, subject to a penalty payment of 100,000 euros per day of delay from the eighth day following the decision to be taken, to the companies Google France and Google Ireland Limited, the restoration of the publication and dissemination of advertisements in connection with the regulated information service telephone calls, Google Ads accounts of the companies Majordom', Dgital Solutions Prod, Premium Audiotel, E-Guide Limited and Aowoa as they were broadcast before the exclusion measure applied by the defendants on the night of March 30 to 31, 2020.
– State that this reinstatement measure comes within the framework of the contract that bound or binds each of the parties with Google under the Google Ads service and that the parties remain subject to compliance with its provisions.
– Acknowledge that the reinstatement thus ordered applies pending a decision on the merits of the Court of Céans ruling on the validity of the exclusion measure
contested, it being understood that the companies Majordom', Digital Solutions Pord, Premium Audiotel, E-Guide Limited and Aowoa undertake to bring proceedings against the companies Google France and Google Ireland Limited within a period of (2) two months from the Order to intervene.

In any case :
– Dismiss the companies Google France and Google Ireland Limited from all of their requests, purposes and claims,
– Condemn in solidum the companies Google France and Google Ireland Limited to pay the sum of 7,000 euros respectively to the companies Majordom', Digital Solutions Prod, Premium Audiotel, E-Guide Limited and Aowoa under Article 700 of the Code of Procedure civil as well as at all costs.

After having heard the counsel of the parties in their explanations and observations, we submitted the delivery of our order, by making it available at the registry, on Thursday, April 30, 2020 at 4 p.m.

DISCUSSION

On the territorial jurisdiction relating to E-Guide ltd

The objection of incompetence having been raised before any defense on the merits or end of inadmissibility, we will declare it admissible.

Google, plaintiff in the exception, maintains that E-Guide ltd, having its registered office at
United Kingdom, has accepted the general conditions applicable to British advertisers which provide for a jurisdiction clause in favor of the English courts

The plaintiffs, with the exception of the defendants, submit to the proceedings the decision of ARCEP having transferred from E-Guide ltd to Premium Audiotel the number 118 609. They maintain that, because of this transfer, E-Guide ltd has become the advertising agent of Premium Audiotel and has therefore agreed to submit to the general conditions of
Google France which provide for the jurisdiction of the Paris Commercial Court in the event of a dispute;

We note that the plaintiffs, however, proceed only by assertions and do not
add to the proceedings no evidence in support of their allegations relating to
the existence of a publicity agent mandate.

We hold that E-Guide ltd fails to demonstrate the jurisdiction of the court here.

Consequently, we will refer the parties to better provide themselves, with regard to the requests
of E-Guide ltd.

On Google France's request for exoneration

We note that SARL Google France, the only company to legally intervene in
France and to develop the activity of the Google group on the national territory, is presented to the eyes of the French public as being the manager of the sponsored links and that it behaves as responsible on French territory for the advertising activity of the Google website France ;

We will therefore dismiss the defendants of their exonerated claim.
from Google France.

On the requests for the inadmissibility of the requests of E-Guide ltd and Premium Audiotel

We recall that constitutes an end of inadmissibility any means which tends to have the adversary declared inadmissible in his request, without examination on the merits, for lack of right to act, such as lack of quality, lack of interest, prescription, prefix period, res judicata; that the action is open to all those who have a legitimate interest in the success or rejection of a claim; that any claim made by or against a person deprived of the right to act is inadmissible.

> On E-Guide ltd's lack of interest in acting
We recall that we have declared ourselves above incompetent for the benefit of the English courts with regard to the requests of E-Guide ltd.
We will therefore say that there is no need to rule on the plea of inadmissibility of this company.

> On Premium Audiotel's lack of standing
We note that Premium Audiotel's Google Ads account was permanently suspended on May 2, 2018 for non-payment of its invoices, and that the court hereby rejected on November 26, 2018 all of the compensation claims that Premium Audiotel had made against Google Ireland for alleged breaches of contract (Google Exhibit 18).

We note that, as we have already noted above, Premium Audiotel does not provide any evidence in support of its allegations relating to the fact that it is an advertiser represented by E-Guide ltd as an advertising agent; that Premium Audiotel therefore no longer has any contractual relationship with Google Ireland since May 2018; that it does not have the capacity to request in summary proceedings that the contractual conditions currently in force be modified as far as it is concerned, and that the application of the rule on telephone directory inquiry services be suspended for its benefit for six months.
We will therefore declare Premium Audiotel inadmissible for lack of standing.

On the request for reinstatement under penalty of the publication and dissemination of online advertisements with the regulated services of the plaintiffs' telephone information

We recall that we can, even in the presence of a serious dispute, prescribe in summary proceedings the precautionary or remedial measures that are necessary, either to prevent imminent damage, or to put an end to a manifestly unlawful disturbance.

With regard to manifestly unlawful disturbance, we recall that this includes any
disturbance resulting from a fact which, directly or indirectly, constitutes a clear violation of a rule of law (including the clear violation of a contractual stipulation).

The plaintiffs in support of their allegations relating to the existence of a disorder
manifestly unlawful state that:
– Google's ad is imprecise, opaque and discriminatory,
– Google holds a dominant position in the online search advertising market,
– Google is guilty, against the plaintiffs, of refusing to sell,

The defendants reply that the manifestly unlawful disturbance has not been demonstrated:
– The plaintiffs do not demonstrate Google's abusive behavior since the new rule is clear and precise, is not discriminatory and does not constitute a refusal to sell within the meaning of the case law of the CJEU.
– Nor do they demonstrate the existence of an appreciable restriction of competition on the relevant market.

We note that, according to Google's own statements, one of the telephone information operators whose Google Ads account had been suspended, the company Amadeus, seized the Competition Authority in May 2018 of a complaint and a request for precautionary measures on the grounds that Google allegedly abused its position by suspending its Google Ads account and refusing some of its ads.

By decision of January 31, 2019, the Competition Authority ruling on the request for
precautionary measures by Amadeus considered on a provisional basis that in the state of the elements produced in the debate, Google's practices with regard to Amadeus were likely to constitute an abuse of a dominant position because they were likely (i ) to characterize a sudden termination of commercial relations with this company under conditions that were not objective and transparent and (ii) to be regarded as discriminatory in relation to other providers of paid directory inquiry services in 118. It consequently ordered a number of precautionary measures against Google pending the outcome of the investigation on the merits, and in particular asked it to clarify the Google Ads rules applicable to paid directory inquiry services electronic.

Google supports:
– that it has implemented the precautionary measures ordered by the Competition Authority and has submitted to it a report detailing the actions it has taken in execution of each of the precautionary measures,
– that it informed the Autorité de la concurrence of this decision before implementing it, during a conference call held on September 4, 2019 and which was followed by an email,
– that the rapporteur for the Autorité de la concurrence has acknowledged receipt of this email and has not raised any objections.

We note, however, that the Competition Authority simply sent an acknowledgment email to Google (Google exhibit No. 24), drafted in the following terms, which do not constitute formal approval of the measure exclusion of directory inquiry services from the Google Ad service:
“Masters,
We acknowledge receipt of your email.
Best regards. »

We hold that the plaintiffs thus demonstrate the existence of a manifestly unlawful disorder.

With regard to imminent harm, we recall that the question of the imminence of a
damage is at our discretion and is assessed at the time we rule, with the evidence that is binding on us - the imminent damage being that which has not yet been realized, but which will surely occur if the present situation should perpetuate.

We note that the Competition Authority, in its decision no. 19-D-26 of December 19, 2019, underlined in the following terms the dependence of telephone information and service companies on the traffic generated by Google Ads ads:

“§ 461: A significant proportion of sites not backed by large groups have in fact made intensive use of paid referencing in the three sectors concerned by the economic study over the period 2004-2018. Thus, almost a third of the sites not backed by of large groups in the business information sectors had more than [80 – 90] % paid clicks among the clicks received from Google. In the directories sector, [Editor's note: including, under the terms of article 34 of the postal and electronic communications code, telephone directory inquiry services] eight of the first twenty sites not backed by large groups had more than [80 – 90] % of paid clicks among clicks received from Google, and more than half of the top twenty sites had half or more paid clicks among clicks from Google. (…)

It was found that the suspensions or closures of Google Ads accounts resulting from the application by Google of its disputed Rules resulted in very substantial decreases in traffic and turnover for the websites concerned, contrasting with the growth displayed by these sites when they had access to Google Ads. »
The plaintiffs submit to the proceedings certificates from their managers, drawn up in accordance with legal requirements, specifying that:
"During the 2018 and 2019 financial years, Majordom's turnover generated thanks to the Google Ads service was 88%,

over the 2017, 2018 and 2019 financial years, the turnover of the company Digital Solutions
PROD generated through the Google Ad service was 95%, (…)

in the 2019 financial year, the position with the Google Ads service and the telephone information service represented 96.42% of Aowoa's turnover. ".

Finally, and overwhelmingly, Google maintains that the plaintiffs themselves created
their own urgency while waiting to appear before us in summary proceedings from hour to hour more than five months after the announcement of the new rule on directory inquiry services, which would in itself demonstrate the absence of any urgency.

However, we note that, as soon as Google announced in September 2019 its decision
to exclude directory inquiry services from the Google Ads service in December 2019, the plaintiffs asked Google for an explanation; that the latter announced in December 2019 the postponement of its measure of exclusion from the telephone information services of the Google Ads service in March 2020; that the plaintiffs summoned the defendants from hour to hour before us as of February 20, 2020; that the proceeding came to our hearing on March 6, 2020, when the plaintiffs had only received, which is not disputed by Google, the defendants' conclusions the previous night; that we adjourned the matter to our hearing of April 3, 2020; that it is not disputed that Google has ceased to publish, since the night of March 30 to March 31, 2020, all the plaintiffs' announcements; that our hearing of April 3, 2020 could not be held because of the state of health emergency declared by the French Government due to Covid 19; that the plaintiffs approached the court registry as of April 1, 2020 and asked the latter to provide them with any useful information, in particular with regard to the resumption of the hearings, or the fact that their summary proceedings ·time to time can be given priority.

We hold that the plaintiffs have not demonstrated in the implementation of their
request for precautionary procedure of negligence in the defense of their interests likely to demonstrate the uselessness of the measures that we are asked to order.

We note that the decision of the Autorité de la concurrence and the certificates of the
plaintiffs establish the existence of imminent harm, and that the defendants fail to show that the plaintiffs negligently created their own emergency.

We will therefore order the defendants, under penalty in solidum of 100,000 euros per day of delay from the eighth day following the service of this decision, for a period of one month at the end of which it may again be made right, the restoration of the publication and distribution of advertisements in connection with the regulated telephone information service, of the Google Ads accounts of the companies Majordom', Digital Solutions Prod and Aowoa as they were distributed before the exclusion measure applied by the defendants on the night of March 30 to 31, 2020.

We will say that this reinstatement measure takes place within the framework of the contract that bound or binds each of the parties with Google under the Google Ads service and that the parties remain subject to compliance with its provisions.

We will acknowledge to the plaintiffs that the reinstatement thus ordered applies
pending a decision on the merits of the court ruling on the validity of the contested exclusion measure, and that the companies Majordom', Digital Solutions Prod, and Aowoa undertake to assign the companies Google France to the merits and Google Ireland Limited within two months of service of this order.

We will say that if the plaintiffs fail to respect this undertaking, the
defendants may resume the implementation of the measure to cease publication of the plaintiffs' announcements as soon as a period of two months has expired from the service of this decision.

On article 700 of the CPC and the costs

It seems fair, taking into account the elements provided, to allocate to the plaintiffs a
sum of €7,000, pursuant to article 700 of the CPC, dismissing them for the remainder, and to order the defendants in solidum to pay the costs.

DECISION

Ruling by contradictory order in first instance,

On the objection of lack of jurisdiction,
Having regard to article 81 of the CPC

Let us declare the defendants admissible in their objection to jurisdiction,

We refer the parties to better provide themselves, with regard to the requests of E-Guide ltd;

Let's say there is no reason to rule on the plea of inadmissibility for lack of interest in acting against this company;

Declare Premium Audiotel inadmissible for lack of standing;

Considering article 873 of the CPC,

Let's dismiss the defendants of their request for exoneration from Google France;

We order Google Ireland Limited and Google France, under penalty in solidum of 100,000 euros per day of delay from the eighth day following the service of this decision, for a period of one month at the end of which it may again be makes right, the restoration of the publication and distribution of advertisements in connection with the regulated telephone information service, of the Google Ads accounts of the companies Majordom', Digital Solution Prod and Aowoa as they were distributed before the exclusion measure applied by the defendants on the night of March 30 to 31, 2020;

Let's say that this reinstatement measure occurs within the framework of the contract that linked or binding each of the parties with Google under the Google Ads service and that the parties remain subject to compliance with its provisions;

We give note to Majordom', Digital Solutions Prod, and Aowoa that the reinstatement thus ordered applies pending a decision on the merits of the court hereby ruling on the validity of the contested exclusion measure, and that they undertake to bring proceedings against Google Ireland Limited and Google France within two months of the notification of this decision;

Let's say that, fault for Majordom', Digital Solutions Prod, and Aowoa of
respect this commitment, Google Ireland Limited and Google France may resume implementation of the measure to cease publication of the plaintiffs' advertisements upon expiry of a period of two months from the notification of this decision;

Reject the claims of other parties, further or contrary;

Order Google Ireland Limited and Google France to pay in solidum to the plaintiffs the sum of €7,000 on the basis of article 700 of the CPC;

Order Google Ireland Limited and Google France in solidum to pay the costs of the proceedings, including those to be recovered by the registry liquidated in the sum of €200.12 including tax, including €33.14 VAT;

This decision is ipso jure provisionally enforceable pursuant to Article 489 of the CPC.

Be assisted by a lawyer specializing in trademarks, competition