Can Social Media Be Directly Liable Under the Press Publishers' Right? Why the Better Answers Lie Beyond Article 15 CDSM Directive

The next frontier of the press publishers' right

In the recent judgment Meta Platforms Ireland (Compensation équitable), the CJEU has clarified that Member States (MS) may enhance the practical effectiveness of the press publishers' right through procedural mechanisms, including mandatory negotiations, information obligations and, under certain conditions, the determination of equitable remuneration. Art. 15 CDSM Directive fully harmonises only the substance of the press publishers' right, corresponding to the rights of reproduction and making available to the public (MATP) under art. 2 and 3(2) of the InfoSoc Directive, while modalities of its enforcement are subject only to the Enforcement Directive which does not fully harmonise the national law on the enforcement of IP rights.

One crucial practical issue has not been resolved in the judgment: Can social media platforms themselves infringe the press publishers' right when users upload content protected by the press publishers' right, links, or other references because of subsequently recommending, ranking, and personalising the presentation of such uploads by means of sophisticated algorithms? Against the background of AG Szpunar’s Opinion in Meta, and with a view to the pending Streamz case, where the issue will be relevant, this is a topical question.

The recent CJEU's judgment in Meta Platforms Ireland

In Meta, the CJEU had to decide the question of whether an Italian regime seeking to strengthen the enforcement of the press publishers’ right by establishing a negotiation mechanism was compatible with EU law.

The Court accepted that national legislation may strengthen the bargaining position of press publishers by introducing procedural mechanisms designed to facilitate licensing negotiations. Such measures, according to the Court, concern the exercise of the right rather than its substantive scope and may therefore fall within the Member States’ regulatory autonomy, if they respect the principle of proportionality and do not undermine the essential characteristics of the exclusive right.

By contrast, the substantial scope of the press publishers’ right is fully harmonised and binding. Art. 15 grants the rights of reproduction and of MATP. The judgment emphasises that the rights conferred by art. 15 have the same substantive scope as the reproduction right and the MATPright, as defined by art. 2 and 3(2) of the InfoSoc Directive and their settled interpretation in the CJEU’s case law. Furthermore, the Court made clear that the national regimes must not prevent press publishers from granting licences free of charge, if they wish so, thereby reflecting the nature of the press publishers’ right as a property-like, exclusive right. Conversely, platforms are not required to take licences if they decide not to use the contents protected by the press publishers’ right.

The attraction and the limits of direct platform liability

The question, now relevant for the Streamz case, of whether social media platforms can be directly liable under art. 15 for an own MATP-act when they display user uploads on their platforms is not directly addressed in the judgment as it was not raised by the Italian reference questions.

1. AG Szpunar’s test balloon

However, AG Szpunar proposed a potential approach in his opinion in Meta. He stated that the rights granted in art. 15 must be interpreted as sui generis, meaning that the scope of the right can be broader than it generally is under art. 3(2) InfoSoc Directive. From a policy perspective, the intuition is understandable. Modern social media feeds are no longer presented chronologically by default. They are tailored to the individual user through recommendation systems designed to maximise user engagement.

Consequently, the AG suggested that platforms whose algorithms actively recommend and organise users' uploads may, in reality, evolve into autonomous providers of content rather than remaining neutral intermediaries. The sophisticated algorithmic curation of content would therefore justify treating the platform's activity as its own MATP-act.

2. YouTube/Cyando as governing framework

Yet, the Court in Meta did not follow the AG on this point. Instead, it emphasised that it is art. 2 and 3(2) InfoSoc Directive that define the scope of the press publishers’ exclusive rights. This might be seen as a hint that the general requirements from YouTube/Cyando for a direct act of communication to the public apply to the press publishers’ right as well.

If YouTube/Cyando constitutes the governing framework for liability, platforms cannot incur direct liability for user uploads. The judgment deliberately adopted a consistent approach with the older case law on that matter: Platforms incur direct liability only where they move beyond the neutral role of hosting user-generated content, e.g. by knowingly facilitating infringements, failing to react expeditiously after obtaining specific knowledge, providing tools specifically intended for unlawful sharing or otherwise playing an active role that goes beyond the mere operation of the platform. In other cases, the platforms merely provide the technical conditions allowing users to communicate protected content to the public. This is in consistent line with the Digital Services Act’s (DSA) approach: The DSA itself regulates algorithmic recommendation systems, while at the same time leaving the provider safe harbour for hosting platforms (that use such systems) untouched.

Also, liability under the doctrine established in YouTube/Cyando is accessory in nature. It requires an underlying infringement of the primary actor for which the platform is held liable if it infringes its duties. However, there is no such infringement by the users who upload contents subject to press publishers’ rights for private or non-commercial purposes: This is because art. 15 expressly excludes private and non-commercial uses by individual users from the scope of the exclusive press publishers right. Consequently, no liability of platforms under the press publishers’ right can be construed for user uploads under the doctrine in YouTube/Cyando.

3. The problem runs even deeper under Article 15

The exclusion of private and non-commercial uses from art. 15 is not incidental. It forms part of the legislative compromise underlying the provision. Namely, the exclusive rights do not extend to private users sharing press content for non-commercial purposes in order to safeguard their freedom of speech (as granted by art. 11 of the Charter).

Construing a direct liability of the platforms (for such lawful user acts) under art. 15 would mean that platforms, not being required to take out licences if they do not use any protected material, would be at liberty to remove respective content from their platform to avoid liability (and payment). While the users’ freedom of speech would obviously suffer from this, on the other side, as follows expressly from the Meta judgment, and in line with the fundamental right according to Art. 16 of the Charter, under an exclusive right regime the platform must be able to avoid liability by not using protected material. The conundrum is that if the platform thus decided to block such press publishers’ contents, art. 15 would lack any mechanisms comparable to art. 17(7) and (9), which state that platforms must not delete lawful user content. Art. 15 simply follows a different systematical approach to protect the users, i.e. by curtailing the scope of the exclusive right. Free-handedly construing a concept of direct platform liability under art. 15 in case law beyond that carefully tailored scope, would thus not just raise contextual doubts, but also leave individual users standing in the rain, since the checks and balances, provided for by the lex specialis regime under art. 17 in favour of individual users, would be conspicuously amiss. However, it is only because of these very checks and balances that the Court, in its Poland v. Parliament and Council judgment, accepted the conformity of Art. 17 of the CDSM Directive with art. 11 of the Charter in the first place.

4. Application of Article 17 to the press publishers' right?

Art. 17 itself cannot reasonably be applied to the press publishers’ right either. Similarly to the doctrine established in YouTube/Cyando, the concept underlying Art. 17 is still accessory in nature (elsewhere, I have thus pointed out the hybrid nature of the art. 17-regime). While it does construe a direct liability of online content sharing service providers (OCSPs) for their users’ acts, it nonetheless presupposes that these acts themselves are copyright relevant, and does not establish a self-standing infringement of a platform where the users themselves did not infringe the right by their uploads. On the contrary, as is evident from art. 17(7) and (9), platforms must not remove content which has legally been uploaded by the user.

Hence, if art. 17 were applied, platforms could not remove content protected by the press publishers' right where that content was uploaded by private or non-commercial users, anyway, because art. 15 expressly excludes private and non-commercial uses from the scope of the right, and thus the upload of such contents would be legal. Contextually, this situation could not be reconciled with the express statement of the Court in Meta that, under the “exclusive right”-approach, chosen by art. 15, platforms must be able to decide whether they wish to use protected content, and that they are required to provide compensation only where they choose to do so – as it pertains to the essential characteristics of an exclusive right protection.

Against this background, the fact that art. 17 does not explicitly refer to the press publishers' right is not a legislative oversight. Rather, it reflects that the concept underlying art. 17 does not fit the ‘truncated’ right established by art. 15 that deliberately carves out private and non-commercial uses, and that extending art. 17 to the press publishers’ right would thus lead to a self-contradictory approach.

5. Further limitation: Self-upload by the press publisher

Situations, in which the press publishers themselves are responsible for uploading the contents, are even more problematic. Given the importance of platforms for marketing and the reach of contents, this occurs frequently in practice. In such cases, the problem is not only a liability issue but rather, that there is not even an MATP-act under art. 3(2) in the first place. Since the press publisher intended to reach the platform’s users, there is no “new public” of the kind that the CJEU requires for a communication to the public. In any event, one would have to assume the press publishers' consent to the public communication. The exclusive right does not provide for compensation in such circumstances, since, as the CJEU clarified in Meta, a press publisher may consent to the use of its protected content without requiring remuneration.

Looking beyond exclusive rights

None of this means that the economic concerns motivating the press publishers' right should be ignored. Publishers face genuine challenges in digital markets. The judgment in Meta itself rightly acknowledges that Member States may strengthen licensing negotiations through carefully designed procedural mechanisms. Practical challenges imply a need for further action. However, they do not justify abandoning doctrinal coherence in construing new theories of direct liability at the expense of the individual users’ freedom of expression. Experience from the previous press publishers' rights regimes in Germany and Spain demonstrates how exclusive rights alone fail to adequately address structural bargaining asymmetries between publishers and major online platforms. If additional remuneration for publishers is considered desirable, EU law should provide a more consistent and convincing approach: legislative remuneration schemes may provide a workable and balanced response to the economic realities of digital markets.

The author has written a legal opinion on social media and the press publishers’ right that was published (in German language) in Computer und Recht 2026, 590-596.