EU member states have the right to impose their own measures to strengthen the position of publishers in their dealings with large online platforms as long as these do not undermine freedom of contract, an adviser to the EU’s highest court said on Thursday.
The European Union’s Court of Justice (CJEU) is handling a dispute between Facebook owner Meta and the Italian communications authority AGCOM, over a fee the US tech giant has to pay publishers in Italy for using snippets of their news articles.
Meta had questioned whether such national measures are compatible with rights already granted to publishers under the EU copyright legislation.
But CJEU Advocate General Maciej Szpunar said the rights the EU had intended to give to publishers went beyond only allowing them to oppose the use of their material if they were not paid for them.
“Their purpose is to establish the conditions under which those publications are actually used, while allowing publishers to receive a fair share of the revenues derived by platforms from that use,” he said.
“The limitations introduced pursue a public interest recognised by the EU legislature: strengthening the economic viability of the press, a key pillar of democracy.”
Meta said it would await the court’s final decision, but added it believed that the Italian implementation of the directive undermined copyright harmonisation across Europe.
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“This case highlights the need for consistent legislation, as fragmentation stifles innovation and creates uncertainty,” a Meta spokesperson said.
In his opinion, Szpunar said the Italian regulator should keep in mind contractual freedom.
“The powers conferred on AGCOM – including the definition of benchmark criteria for determining remuneration, the resolution of disagreements and the monitoring of the obligation to provide information – are permissible if they are limited to assistance and do not deprive the parties of their contractual freedom,” he said.
The court, which usually follows the majority of recommendations by the advocate-general, will rule in the coming months.
The case is C-797/23 Meta Platforms Ireland (Fair compensation).
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