Background
Italy implemented the EU’s Copyright in the Digital Single Market Directive (2019/790) by amending Article 43-bis of Italian Law No. 633/1941, its copyright statute. The Italian framework went further than many other member states, requiring online platforms to negotiate fair compensation with press publishers for use of their publications, disclose advertising revenue data within 30 days, and maintain the visibility of publisher content during negotiations — on pain of administrative fines up to 1% of annual turnover. Italy’s communications authority AGCOM adopted Decision No. 3/23/CONS in January 2023, establishing a compensation methodology: advertising revenue generated from publisher content, minus the publisher’s traffic-redirection revenue, multiplied by a rate up to 70%.
Meta challenged the Italian framework before the Lazio Regional Administrative Court, arguing it transformed the exclusive rights granted by Article 15 of the Directive into a mere compulsory licensing scheme, violating the Directive and the EU Charter’s protections for freedom to conduct business. The Italian court referred three questions to the CJEU for a preliminary ruling.
The Court’s Holding
The CJEU’s Grand Chamber ruled that EU law does not prevent national legislation like Italy’s from establishing fair compensation obligations, negotiation duties, and data-disclosure requirements — subject to three conditions:
First, publishers must retain the genuine right to refuse authorization or to grant it free of charge. The framework cannot effectively convert Article 15’s exclusive rights into a compulsory license. The Court clarified that “the protection conferred by Article 15 extends not just to the enjoyment of the rights it grants, but also to their effective exercise in practice.”
Second, payment obligations may only apply to platforms that actually use or intend to use press publications. A platform that does not display press content cannot be subject to compensation duties.
Third, all measures must respect proportionality. The Court found Italy’s penalty cap (1% of turnover) satisfied this requirement because it allows calibration to the financial capacity of non-compliant operators.
On the freedom-of-business challenge, the Court acknowledged that data-disclosure and search-visibility obligations limit the freedom to conduct business under Article 16 of the Charter. However, these limitations are justified under Article 52(1) of the Charter because they serve the legitimate objectives of protecting intellectual property rights (Article 17(2)) and media pluralism (Article 11(2)). The Court emphasized that media freedom and pluralism constitute “one of the essential foundations of a pluralist, democratic society” under Article 2 of the Treaty on European Union.
Critically, the Court identified a structural information asymmetry: “only information society service providers possess the information that enables the economic value of online use of press publications to be assessed.” This asymmetry justifies data-disclosure obligations and visibility protections during negotiations to prevent platforms from exercising economic pressure on publishers.
Key Takeaways
- Platforms must negotiate, not just comply. The ruling legitimizes a framework where platforms face affirmative obligations — mandatory negotiation, data disclosure, and visibility maintenance — rather than simply waiting for publishers to invoke their rights.
- The “delisting threat” is now legally constrained. Platforms may not reduce the visibility of news articles in search results while compensation negotiations are ongoing. This directly addresses the asymmetric bargaining power that Google and Meta have historically used in publisher negotiations.
- Member states have broad implementation latitude. The CJEU confirmed that national legislatures have discretion in crafting detailed Article 15 rules, as long as they preserve the exclusive-right nature and respect proportionality. This green-lights aggressive national implementations like Italy’s.
- AI implications are on the horizon. While the ruling directly addresses platform display of news content, the principles apply to any commercial use of press publications — including AI training, automated summaries, and AI-generated content that draws on publisher materials.
Why It Matters
This Grand Chamber ruling — the CJEU’s highest-profile interpretation of Article 15 since the DSM Directive was adopted — reshapes the balance of power between tech platforms and press publishers across all 27 EU member states. It validates the most aggressive national implementation of press publishers’ rights to date and provides a template for other member states to adopt similar mandatory-negotiation frameworks. For platforms operating in Europe, the ruling means they cannot use content visibility or data withholding as leverage in licensing negotiations. For publishers, it confirms that the DSM Directive provides meaningful enforcement teeth — not just paper rights — against the world’s largest technology companies.