On 12 May 2026 the Court of Justice of the European Union (CJEU) delivered its long-awaited judgement in Meta (C-797/23). The case enquired about the compliance of the Italian implementation of the press publishers’ right and the bargaining mechanism it introduces with art. 15 Copyright in the Digital Single Market Directive (CDSMD) and freedom to conduct business provided by the EU Charter of Fundamental Rights. Italy was the first, but not the last, member state to adopt a detailed (and creative) bargaining framework to aid press publishers in their negotiations with digital platforms. What has made this framework controversial, is the role and powers it provides to AGCOM, the Italian communications authority. Additionally, Italian implementation has been criticised for seemingly awarding press publishers a right to fair compensation alongside their new related right and imposing an obligation to bargain on digital platforms.
In principle, the CJEU found the Italian bargaining framework permissible, as long as it does not interfere with the nature and the scope of the press publishers’ right, which the Court confirmed is exclusive in its nature and cannot be substituted by a right to remuneration. Markedly, the CJEU emphasised that the bargaining framework and obligations it imposes need to apply only when a digital platform ‘uses or intends to use’ press publications, which means that it cannot be relied on to bring to the negotiation table a platform which has ceased using press publishers’ content or has never used it in the way covered by art. 15 CDSMD.
As the Italian bargaining framework has given inspiration to other member states to adopt similar solutions and the discussions on facilitating licensing for AI uses are ongoing, the CJEU judgement in Meta is bound to have an impact beyond Italy and press publishing. The Court’s decision provides guidance on how far member states can go when implementing substantial provisions of the EU copyright to ensure their ‘effectiveness’ (possibly, too far). This post unpacks the Meta case, arguing that the Court’s decision should not be over-interpreted as an irrefutable support for national bargaining schemes forcing big tech to the negotiation table. The picture which emerges from the CJEU’s ruling is much more nuanced, and the Court has left the issue of applicability of art. 15 CDSMD to social media unaddressed.
Legal background
Italy implemented the CDSMD in 2021 by means of the Legislative Decree n. 177, with art. 43-bis addressing the press publishers’ right. Alongside granting press publishers exclusive rights of reproduction and making available covering online uses of press content by information society service providers (ISSPs), art. 43-bis provides that ISSPs ‘shall pay fair compensation’ to press publishers for such uses. The Decree makes AGCOM responsible for setting the criteria to determine ‘fair compensation’, which it did in its 2023 decision (3/23/CONS). While the compensation is primarily subject to negotiation between publishers and ISSPs, if they cannot reach an agreement, either party can ask AGCOM to determine said compensation by making a choice between bargaining parties’ remuneration offers (so called last offer arbitration). Additionally, the Decree imposes two obligations on ISSPs. First, a transparency obligation, where upon request an ISSP has to provide the publisher (and AGCOM, when appropriate), data necessary to determine the amount of fair compensation due. If an ISSP does not do so within 30 days, AGCOM can impose an administrative fine up to 1% of the ISSP’s annual turnover. Secondly, the ISSPs are not allowed to limit the visibility of press publishers’ content in the search results during the negations.
By William Heath Robinson, 1872-1944 (illustrator). Source: Wikimedia Commons.
Following the publication of AGCOM 2023 decision, Meta, the owner of (among others) Facebook, brought an action for its annulment to the Lazio Regional Administrative Court arguing that both the decision and the Italian transposition of the press publishers’ right in general are contrary to art. 15 CDSMD and freedom to conduct a business guaranteed by art. 16 of the Charter. Uncertain about the their compliance with the EU law, the Lazio Court stayed the proceedings and referred a number of questions to the CJEU.
The hearing at the CJEU, which took place on 10 February 2025, showed a fundamental disagreement on the meaning and substance of the Italian implementation provisions. While none of the questions posed by the Lazio Court concerned the applicability of the press publishers’ right to social media platforms, a considerable part of the oral argument addressed this issue, speaking to the definition of an ISSP, scope of art. 17 CDSMD and news-provision function of social media such as Facebook.
AG Szpunar’s opinion delivered on 10 July 2025, looked favourably on the Italian implementation, arguing that since it was the intention of the EU legislator to ‘establish the conditions under which [press] publications are actually used’ member states are free (if not required) to create frameworks which allow for the effective exercise of the new right for press publishers, as long as these frameworks do not alter the substance of the rights. According to AG Szpunar, the press publishers’ right does not ‘have a general nature of copyright or other related rights’, as its objective is not only to provide legal basis for licensing, but it also aims to guarantee that publishers’ receive ‘a fair share of revenues derived by ISSPs’ from the uses of their content. Notably, AG Szpunar spoke firmly for the inclusion of social media within the press publishers’ right’s scope.
By William Heath Robinson, 1872-1944 (illustrator). Source: Wikimedia Commons.
Judgement of the Court
In the judgement delivered on 12 May 2026, the CJEU found the Italian-style bargaining framework permissible (in principle). First, the Court assessed its compliance with art. 15 CDSMD. Since the CDSMD does not specify the rules for art. 15 implementation, the CJEU relied on art. 288 TFUE to set the boundaries for the member states’ discretion, requiring member states to adopt all the necessary measures to ensure full effectiveness of the provisions they are implementing in accordance with the objectives they pursue. In the Court’s view, in case of the press publishers’ right, those would especially be the recognition and recoupment of investment in production of press publications, to ensure sustainability of the press and access to information.
After confirming that the press publishers’ right is an exclusive right of preventative nature, the CJEU noted that member states cannot replace it with the right of remuneration. The ‘fair compensation’ in the Italian implementation should be interpreted as any remuneration the parties freely agree on and can amount to zero. The payment of remuneration as well as obligations imposed by art. 43-bis are conditional on the ISSPs using press publishers’ content. Only ISSPs which reproduce or make press publications available to the public can be obliged to enter negotiations, provide publishers with information and be restricted from limiting the visibility of press publications in their services. The CJEU accepted that the obligations imposed on the ISSPs are an expression of the principle of negotiation in good faith, intended to address the ‘economic imbalance and information asymmetry’ between publishers and platforms. In the Court’s view, the transparency requirement is justified, as only ISSPs possess information which allows publishers to freely decide whether, and if yes for how much, to authorise the use of their content. Powers conferred on AGCOM also were accepted as they only facilitate, not substitute, the conclusion of the agreement between the parties.
The second part of the CJEU ruling focused on the potential restrictions to freedom to conduct business stemming from art. 16 of the Charter. Following the requirements of art. 52 of the Charter, the CJEU balanced freedom to conduct business against the right to intellectual property (art. 17(2) of the Charter) and freedom and pluralism of media (art. 11(2) of the Charter). First, the Court did not see the requirement that the ISSPs pays publishers ‘fair compensation’ as a limitation of freedom to conduct business as long as ‘fair compensation’ is interpreted as freely agreed on by the publishers and the ISSPs. Secondly, while the Court found that obligations imposed on ISSPs interfere with freedom to conduct business, such limitation is permissible as it is provided by law, it does not interfere with the freedom’s substance as it does not prevent all business activity or deprive ISSPs of their interests generally, and is both appropriate and proportionate to achieving art. 15 CDSMD objectives.
Comment
Meta provided the CJEU the first, but certainly not the last, opportunity to reflect on the press publishers’ right (the next one, Streamz and others (C-663/24) is already pending). While in principle the Court found the Italian-style negotiation framework permissible, a number of issues requires further consideration.
Nature of press publishers’ right
The CJEU confirmed that the press publishers’ right is a measure of full harmonisation of the substantive law and by its nature, an exclusive right. This means that the subject matter regulated – the online use of press publications by the ISSPs – has been addressed in an exhaustive manner by the EU legislator and member states cannot step in to alter the press publishers’ right’s scope or nature (including modifying the definition of a press publication, altering the designation of beneficiaries and potentially strictly defining the length of excerpts excluded from the right’s scope).
While the CJEU was clear in precluding member states from replacing press publishers’ exclusive rights with the right of remuneration, the Court’s judgement hints at the persistent ambiguity in remuneration rights’ perception. While AG Szpunar called the reference to the ‘fair compensation’ in the Italian implementation ‘not opportune’, the wording of ‘the right to obtain fair remuneration’ was embraced by the CJEU. A lone reading of the judgement’s dictum could (and looking at some comments, did) create an impression that the Court allowed member states to create the right to remuneration to benefit publishers for the uses which are already covered by exclusive rights. On the contrary, the CJEU emphasised that publishers need to retain a right to refuse authorisation. As such, the right of press publishers needs to remain prohibitive in its nature, and not merely pecuniary, which is the key characteristics of remuneration rights, rights that guarantee remuneration but provide no say over the use of one’s work.
Describing the remuneration due to publishers as ‘fair compensation’ is indeed unfortunate and systematically confusing. As pointed out by Sganga and Contardi, the ‘fair compensation’ language is more fitting in the context of copyright exceptions, where the rightsholder is compensated for uses which normally would fall within their exclusive rights, but are excused due to a copyright exception.
Permissibility of bargaining framework
Italian bargaining framework is an unprecedented solution within the copyright domain, which traditionally provides for private law entitlements, but does not intervene into agreements concerning them. Thus, the fact that art. 15 CDSMD does not speak to the shape of the licensing negotiations is not unexpected. While the Court noted that the press publishers’ right is a measure of full harmonisation with regards to the substance of the right, member states are free to choose whether and if yes how to address the licensing in their national implementations. While most decided not to use those freedoms, a number of approaches to the operationalisation of the right exists, which Martin Kreatschmer and I have analysed in our just-published contribution to the Cambridge Handbook of Media Law and Policy in Europe.
In its judgement, the CJEU focused on the right’s objectives, as interpreted from recitals 54 and 55 of the CDSMD, as means for setting the boundaries for the member states’ discretion. Ultimately, the Court found that anything which is not encroaching on the exclusive nature of the right is acceptable as long as it contributes to the full effectiveness of the press publishers’ right. Instantly, this approach undervalues two factors. First, it does not account for the possible misalignment of the measure chosen by the EU legislator and the declared objectives. From the moment of its proposal, the press publishers’ right was criticised for its unfitness to deliver the goals set. It was, and is not, capable of bringing ISSPs to the negotiation table when they do not wish to negotiate, it does not reward only ‘quality’ journalism and it does not oblige ISSPs to carry publishers’ content (among others). Not accounting for the mismatch between a chosen instrument and the declared objectives creates an ample ground for member states’ activism to do more than ‘ensure effectiveness’ and simply to legislate within the area already regulated. Secondly, the overarching goal of any directive is the approximation of laws of member states. It is difficult to argue that a situation in which each member state champions its own bargaining framework, coming with its own set of obligations, deadlines and requirements does not result in dis-harmonisation.
While in principle accepting negotiation frameworks as the one enacted in Italy, the CJEU emphasised that the negotiation parties’ ability to agree on the conditions of exchange (content/price) remains crucial. Bargaining frameworks cannot compel ISSPs to disclose information or display press publishers’ content when they do not use or wish to use it. Likewise, a decision of a public body, in the Italian case, AGCOM, cannot substitute an agreement between the parties. Which means a regulator might be able to set the remuneration in a decision, but such decision still needs to be followed by an agreement, and parties need to have an option to walk away if a publisher is no longer interested in licensing their content or an ISSP no longer wants to use it. Since the role of the bargaining framework is to facilitate, and not to force negotiations with an unwilling partner, it might not deliver what publishers hope it would: bringing ISSPs which do not want to negotiate to the table.
As noted by both AG Szpunar and the CJEU, measures facilitating negotiations are warranted particularly because press publishers’ are in a weaker bargaining position than ISSPs. While strengthening publishers’ position does not seem contrary to the press publishers’ right per se, one needs to remember that the EU press publishers’ right is not a competition law measure. It is not only directed at ISSPs which enjoy a ‘dominant position on the market’ and exercise ‘economic power’, but at all ISSPs which carry relevant uses of press publications online. This means, small outlets which collect and curate a selection of press publications are also within the scope of the press publishers’ right, and the negotiation frameworks created by the member states equally apply to negotiations between start-ups and established press publishers as they do to Google negotiating with local press titles. While it is big tech which is at the centre of attention, the potential restrictions of ISSPs freedoms should be assessed with all ISSPs in mind, not only those which are prone to ‘abusive behaviour’ as noted by AG Szpunar.
‘Use’ of press publications: the social media problem
While the inclusion of social media within the scope of the press publishers’ right was not covered by the Lazio Court reference, it was discussed at length during the February 2025 hearing, prompting AG Szpunar to address it in his opinion. The question whether social media ‘use’ press publications in a sense covered by the press publishers’ right has become even more pressing after the Meta judgement since it is the ‘use or intention of use’ which determines whether a bargaining framework applies. Unlike search engines and media monitoring companies which scrape the internet for content, social media content is provided by the users themselves, including publishers. Additionally, art. 15 CDSMD excludes individual and non-commercial uses by individual uses from its scope. Consequently, the answer to the question of press publishers’ right applicability to social media is far from simple. This complexity was visible in the European Commission’s statement during the February hearing, which noted that art. 15 CDSMD could apply to social media when they offer specific news services (e.g. now retired Facebook News).
As I have argued before, while it is undisputable that social media are ISSPs, concluding that they make user-uploaded content available is not. The CJEU case law envisages scenarios when an ISSP is liable for copyright-infringing content shared by its users, however, those situations are far-removed from users posting (non-infringing) links and extracts of press publications. If the assumption that ISSPs make user-uploaded content available to the public was justified, there would be no need for art. 17 CDSMD, creating new intermediary liability regime. AG Szpunar’s argument that social media are ‘autonomous content provider[s]’ is rather unconvincing, as it relies solely on the use algorithm recommendation systems, and does not consider (many) communication to the public criteria forged by the CJEU. Bringing social media within the scope of art. 15 CDSMD by applying art. 17 CDSMD is also problematic, since art. 17(1) CDSMD explicitly states that only rightsholders referred to in the InfoSoc Directive benefit from the new provision. This does not include press publishers who were recognised as rightholders only in the CDSMD (see the decision of Copyright Licensing Tribunal questioning the Danish implementation of art. 17 CDSMD since it could benefit press publishers).
Conclusion
In an article published in 2023, I argued that similarly to Hans Christian Andersen’s naked emperor, the press publishers’ right cannot fulfil the hopes that were placed into it and we should not be afraid to call it out. While the current consensus seems to be that the press publishers’ right is not working, there is no agreement on what to do next. AG Szpunar noted that by strengthening the bargaining position of publishers we are clothing the emperor and amending the situation. The CJEU seems to agree. While allowing for bargaining frameworks does put useful tools in the hands of publishers, it does not address the core flaws of the press publishers’ right. Copyright and related rights do not reward only quality journalistic content from publishers who observe industry standards. Higher remuneration is prompted by the higher volume of use. ISSPs can pick-and-choose who they license from. If we want to achieve a sustainable pluralistic press in Europe it might be time to think about alternative solutions. Sometimes clothing the emperor is not an answer. One might just leave him as he is, and move on to different fairy tale.