프랑스 구글(언론사 저작인접권) 사건의 의의와 디지털 시대 경쟁법의 역할에 대한 시사점 - « Ceci n’est pas une affaire de droit de la concurrence » -

On the 8th October 2020, the Paris Court of Appeal upheld the interim measures ordered by France’s competition authority (Autorité de la concurrence) for Google to negotiate “neighboring rights” with news agencies and press publishers. The decisions of the court and the authority are remarkable in that they explore potentials and a “new” role for competition law in the digital era, against the backdrop of societal and political changes caused by the persistent dominance of giant digital platforms, so-called “GAFA.” Indeed, to cope with what are often referred to as “new” challenges brought on by these digital behemoths, France’s authority relies on somewhat atypical tools: i.e., exploitative abuse of dominance/abuse of economic dependence doctrine, and interim measures that have not been frequently used by European competition authorities. Moreover, the French competition watchdog takes the impacts on the proper functioning of a democratic society into account in its analysis. Such experimental aspects make this case worth being reviewing to rethink the contours of competition law and find a proper direction for competition policy in the digital era. In this regard, this paper gives an overview of France’s Google case and examines its implications for Korea's competition law with the aim of identifying policy fit for the “post-modern” digital era. Through this study, the authors hope to contribute to (or spark) the “post-modern competition law” discourse in Korea by providing novel views on the potentials of competition law enforcement. It is noteworthy that the authors make a critical appraisal of this case rather than merely align themselves with the French authority’s experimental approach. The following conclusions have been deduced from the authors’ analysis of this case. First, given the disruptive nature of digital technology, which is blurring boundaries between traditional sectors, it is fair to say that a more holistic approach towards competition law and policy is needed. Nevertheless, it appears unlikely that even the need for a more holistic approach could justify the use of competition rules to effectuate the press publishers’ neighboring rights, which remains highly controversial. Second, interim measures can be a useful tool in a bid to ensure the effectiveness and timeliness of competition enforcement in the digital economy, and, for Korea, it is worth being considering if such measures could and should be introduced to its competition law (as a substitute for the existing unfair trading practice provisions). Third, the use and potential of exploitative abuse and abuse of economic dependence doctrines should be re-appraised in the digital context especially in Europe. However, in contrast to Europe, these doctrines have already been rigorously enforced in Korea and so Korea should continue its efforts to evaluate and elaborate existing legal standards so as to reduce the risk of overenforcement. Last but not least, the authors highlight that further discussion with respect to the role of Korea’s competition law and policy in the digital era is needed to make the digital markets fairer for all citizens.