The Advocate General has delivered an Opinion in Case C-797/23 | Meta Platforms Ireland on fair compensation.
The Advocate General commented that the digital revolution has greatly disrupted the media industry, especially print media. Changing user habits, the rise of online press review services, and competition from new digital channels have significantly reduced publishers’ revenues, threatening their business models and their crucial role in democratic societies. To address this, several legislative measures have been introduced, including EU laws that create new intellectual property rights for press publishers. However, these measures have faced strong criticism regarding their effectiveness and legality.
In this case, the CJEU was asked to decide if the Italian law implementing the Directive on Copyright in the Digital Single Market (the Directive) is compatible with EU law. The Directive gives press publishers specific rights for the online use of their publications by information society service providers (ISSPs), like Meta Platforms Ireland Limited, which operates Facebook.
The Italian Communications Regulatory Authority (AGCOM) issued a decision identifying the benchmark criteria for determining the fair compensation under the Italian law.
Meta issued a challenge in the Italian courts, arguing that the decision and the Italian law conflicted with Article 15 of the Directive and the freedom to conduct a business, guaranteed in Article 16 of the Charter. This was because of the obligations imposed on ISSPs, the significant restrictions on the contractual freedom of economic operators, and the role and powers given to AGCOM.
The Italian court referred the case to the Court of Justice for a preliminary ruling. It asked about the nature of the rights granted, the obligations imposed on ISSPs, and AGCOM’s role in negotiations between publishers and platforms.
Advocate General Maciej Szpunar, in his opinion, stated that the rights given to press publishers are not the same as general copyright or related rights. Instead, these rights aim to set conditions for the use of publications and ensure publishers receive a fair share of the revenues generated by ISSPs.
Member states have some flexibility to ensure these rights are effective. Measures like requiring ISSPs to negotiate, provide information, or maintain the visibility of publishers’ content during negotiations are generally allowed under the Directive, as long as they don’t force a contract or payment without actual use.
AGCOM’s powers, such as setting criteria for remuneration, resolving disputes, and monitoring information obligations, are acceptable if they assist rather than restrict the parties’ freedom to contract. These mechanisms aim to balance the market, which is currently skewed in favour of platforms over publishers.
Finally, the Advocate General believes these limitations do not violate the freedom to conduct a business protected by the Charter, as they serve a public interest recognized by the EU: strengthening the economic viability of the press, a key pillar of democracy.
