Europe’s top court has defeated the appeal of Facebook parent Meta Platforms against a system put in place by Italy’s communications regulator, AGCOM, to negotiate licensing terms for the use of content from news outlets.
The ruling by the Court of Justice of the European Union (CJEU) means that Meta will have to continue working with AGCOM under its framework for compensating publishers whose content it uses in feeds.
Meta had argued AGCOM overstepped its authority in instituting the system for negotiating licensing fees between online platforms and publishers, which it said was not justified by a 2019 reform of EU copyright rules.
Digital copyright
The court disagreed, finding that regulators were justified in creating a framework for enforcing publishers’ online rights, rather than simply allowing those rights to exist in a theoretical fashion.
“The Court finds that a right to fair compensation for publishers is consistent with EU law, provided that that remuneration constitutes consideration for authorising their publications to be used online,” the Luxembourg-based court wrote.
AGCOM’s system includes the right to demand data on traffic and advertising revenue tied to news content, intervene when negotiations collapse, and fine platforms that refuse to engage in negotiations.
Meta had argued that such a system illegally interfered with its ability to do business in the way it saw fit.
State intervention
The court noted that the 2019 reform was not only a commercial review, but was intended to protect “a free and pluralist press” that is “essential to ensure quality journalism and citizens’ access to information”.
Addressing the issue of unlawful business intervention, the court found that AGCOM’s right to demand information from platforms was necessitated by the fact that otherwise, publishers would have no basis for negotiation, since only the platforms themselves possess the relevant data.
“Only information society service providers possess the information enabling the economic value of online use of press publications to be assessed,” the court wrote.
This imbalance gives governments the right to level the playing field, they wrote.
‘Fairer negotiations’
Angela Mills Wade, executive director of industry group the European Publishers Council, said the “important” ruling would “pave the way for fairer negotiations with gatekeepers”, potentially giving them practical leverage.
Meta did not immediately respond to a request for comment.
Some commentators have argued that as EU countries such as Italy, Belgium and Poland create national negotiation systems, inspired by a similar approach in Australia, businesses will face a patchwork of differing models across the bloc.
The case now returns to the Regional Administrative Court for Lazio in Italy, to apply the ruling.
