Rebalancing imbalances in the Digital Economy. The CJEU judgment in Meta C-797/23: a new boost for press publishers?

Introduction

On 12 May 2026, the Grand Chamber of the Court of Justice of the European Union (CJEU) delivered its judgement in Case C-797/23, concerning interpretation of Article 15 of the Directive 2019/790 (the CDSM Directive), and of Articles 16 and 52 of the Charter of Fundamental Rights of the European Union (the Charter).

The case concerns the scope of discretion of Member States while implementing Art. 15 granting press publishers the exclusive rights of reproduction and making available for the online use of their press publications by information society service providers (ISSPs).

The Italian legislator transposed the publishers’ protection with Article 43-bis of Law No 633/1941 and went far beyond mere copying of the Art. 15 of the Directive, sparking a lively debate (see here and here). According to the Italian implementation, ISSPs must pay fair compensation for the online use of press publications. The national legislator mandated that the Italian Communication Authority (AGCOM) adopt a regulation specifying the criteria of fair compensation. Moreover, in case of no agreement on the amount of compensation, both parties may apply to AGCOM to determine the amount of fair compensation.

The Italian implementation foresees additional obligations for ISSPs which are to enter into negotiations with publishers and not to restrict the visibility of content of negotiating publishers. ISSPS must provide those publishers and AGCOM with the information necessary to determine fair compensation. In case of failure to provide data, the body shall impose an administrative fine of up to 1% of turnover.

Facts of the case and questions referred

In 2023, AGCOM on the basis of the Italian implementation of Art. 15 issued Decision No. 3/23/CONS laying down the benchmark criteria for determining fair compensation for press publishers. Meta brought an action for annulment of this Decision, claiming that this document and Article 43-bis of Law No 633/1941 are contrary to Art. 15 of the CDSM Directive, as well as to the freedom to conduct business guaranteed in Art. 16 of the Charter.

The Regional Administrative Court of Lazio expressed it doubts whether the measures adopted by Italian legislature and AGCOM are compatible with the EU law. It pointed out that the introduction of fair compensation the involvement of a public authority in the negotiations process granted extensive powers and the imposition of additional obligations on ISSPs could be seen as extending publishers' protection beyond the scope of Art. 15 of the CDSM Directive, which is supposed to be a full harmonisation mechanism. It referred the case to the Court of Justice for a preliminary ruling.

Other Member States have also introduced, within their transpositions of Article 15, involvement of public authorities in mediation procedures and in determining remuneration for the use of press publications, as well as additional obligations imposed on ISSPs, such as a duty to provide the data necessary for calculating remuneration and a prohibition against restricting the visibility of content of negotiating publishers. For example, to strengthen the bargain power of press publishers, such solutions have been adopted in Belgian, Czech and Polish law (here), and very recently, in France (here). The outcome of the Italian case will therefore be decisive for the future of the effective protection afforded to press publishers across Europe.

The nature of publishers’ rights and fair compensation

As a preliminary matter, the Court of Justice reformulated the question on fair compensation by specifying that it is obtained in return for the authorisation of use of a press publication and not in addition to the exclusive rights. The Court highlighted the preventive nature of exclusive rights granted to press publishers, which implies obtaining the prior consent of the rightholder for the use of the publications. This differs from the right to compensation, which would entitle publishers to remuneration for the online use of their publications, but would not prevent such use.

Enjoyment of exclusive rights confers on press publishers the right to allow the use of their publications for free. It follows, therefore, that there is no obligation for platforms to pay fair compensation where the publisher consents to the free use of its press publications. This conclusion is based on an interpretation conducted in light of the wording and the purpose of the Directive, which explicitly foresees the possibility of authorizing the uses of press publications for free. The Court confirmed that there is no general obligation to remunerate press publishers.

Moreover, the Court specified that the payment of fair compensation cannot be imposed on those ISSPs who do not use or intend to use press publications. This interpretation does not address the issue of platforms ceasing to display the publishers’ content in an attempt to force them to agree to the free or low-cost use of their publications, with a negative effect on the publishers’ interests and their online visibility.

The Court also did not address whether the use of press publications on a social network such as Facebook, the operating model of which is based on content uploaded by users, is covered by the rights provided for in Art. 15. According to the Opinion of Advocate General (AG) Szpunar, since by means of sophisticated algorithms, Facebook suggests specific content to users it is, a truly autonomous content provider to which Art. 15 applies. The arguments put forward by the AG (paras 27-30 of the Opinion) are convincing. Although these are users who share press publications on their accounts, so Facebook does not control what is posted, and those acts do not fall within the exclusive rights of Art. 15, the platform offers the uploaded content to other users who did not carried out any search for that content. Following this reasoning, Facebook is an ISSP reproducing and making press publications available. This should be interpreted in light of the objectives of the publishers' protection and in conjunction with Article 17 of the CDSM Directive. AG Szpunar also made an important observation, in pointing out that that any remuneration cannot be claimed by press publishers in cases where they share their own publications, as follows from the very nature of the rights.

The Court exercised much greater caution and avoided addressing this issue at all. Although this approach can be justified given that the case concerned an abstract review of the legality of Italian law, this referral was an excellent opportunity to elaborate on whether the publishers’ rights apply against social network services or not.

Obligations imposed on information society service providers

The Court found that the obligations imposed on providers, such as the obligation to enter into negotiations with publishers, to refrain from limiting the visibility of those publication during the negotiations and to provide the data necessary for the determination of the amount of fair compensation, are consistent with Art. 15. It emphasized the need to ensure the fairness of negotiations between the parties and to prevent economic pressure on publishers and a reduction in the economic value of their publications. It recognized the weak position of publishers and their dependence on platforms, noting that such obligations serve the general objective of the Directive and the specific objectives of publishers’ protection.

This interpretation can pave the way for the implementation of additional mechanisms in cases when unequal bargaining power and market dependencies threaten the effectiveness of the protection resulting from copyright and related rights. Such mechanisms could, for example, include protection against the imposition of negotiating terms, protection against blackmail in the form of restricting the display of content from copyright and related rights’ holders who wish to negotiate remuneration, or protection against practices of withholding information or providing incomplete information, which is essential for determining fair and adequate remuneration and which is often held exclusively by one party to the negotiations. This is an important guideline for future regulations concerning the use of protected content in situations of market inequality.

Towards reinforced copyright protection in the face of imbalances in the digital economy?

The parties remain free not to conclude a contract despite the role of AGCOM foreseen in the Italian law. Therefore, there is no general obligation to bargain. Moreover, the Court, although in a cautious way, confirmed that AGCOM’s involvement, in so far as it seeks to ensure the effectiveness of the ISSP’s obligation to provide data and subject to compliance with the principle of proportionality, complies with Art. 15.

The Court notes that the obligation to provide data or not to limit the visibility of press publishers’ content are liable to limit the exercise of ISSPs’ freedom to conduct a business. However, according to the Court, this limitation is necessary, proportionate and capable of striking fair balance between different fundamental rights and freedoms.

Although the balance may appear to be shifted in favor of press publishers, seven years after the Directive was adopted and given the disputes that publishers have had and continue to have 

with platforms, it is now clear that these additional mechanisms are needed to support them in negotiations with online platforms. This was demonstrated by the dispute between French press publishers and Google,  where the French Competition Authority had to intervene to ensure that Google enters into negotiations in good faith, provides access to the information necessary to calculate remuneration, and does not restrict the visibility of content from the publishers involved in the negotiations.

However, it is difficult to assess whether introducing such mechanisms will ensure the long-term sustainability of the publishing industry, as intended by the Directive. Will remuneration under the press publishers’ rights prove to be only a drop in the ocean of needs, given the many challenges facing the press, including not only competition from Big Tech, but also declining interest in news among young people, rising production costs, and technological change? It may well do so. What is clear, however, is that press publishers with these additional mechanisms are in a stronger position than those without them and this is an important factor towards strengthening the press sector as a whole.

The Court underlines that in view of market imbalances, Member States enjoy discretion in specifying rules for implementing publishers’ rights. Although, they may not alter the substantive law in terms of nature and scope, the implemented solutions should ensure that the publishers’ protection is fully effective. The ruling highlights the problem of imbalances in the negotiating process and the need to support weaker parties and ensure that negotiations are conducted fairly.

Market and economic factors determine the choice of measures designed to implement the protection of press publishers. To put it more broadly, this judgement constitutes a step towards adapting copyright and related rights to the challenges of digital economy. It demonstrates that, in the digital age, supplementary obligations and mechanisms are necessary in addition to granting exclusive rights, in order to secure the effectiveness of these rights and to address market imbalances and vulnerabilities.

It would be a mistake to think that this landmark ruling puts an end to the tensions between press publishers and Big Tech. In light of the development of AI this is only the beginning…

This work was supported by the Polish National Science Centre, Grant no. DEC-2025/09/X/HS5/00819.

The author of the paper is supported by the Foundation for Polish Science (FNP).