Meta v AGCOM: the Court endorses “regulated contractual freedom” between platforms and press

By Dr. Konstantina Bania

With its Grand Chamber judgment in Meta Platforms Ireland v AGCOM (C‑797/23), the Court of Justice of the EU has handed down a major ruling on Article 15 of the DSM Copyright Directive. Beneath the technicalities lies a clear policy signal: the Court is willing to let Member States wrap the press publishers’ right in a regulatory shell that shapes how platforms and publishers bargain. However, the Court does not turn Article 15 into a pure levy that would force online services to pay for content they choose not to use.

In other words, the Court has endorsed a model of regulated contractual freedom in platform – press relations. That model now sits alongside a fast‑evolving policy agenda in Brussels, where the Commission is gearing up for a 2026 review of the Directive and a targeted legislative initiative on AI‑era copyright and licensing, including better tools to deal with unlicensed uses of content to train generative models.

The Italian job: exclusive rights plus a remuneration mechanism

The dispute originates in Italy’s transposition of Article 15 CDSM. Article 43‑bis of the Italian copyright law (Law 633/1941) grants press publishers the harmonised exclusive rights of reproduction and making available for online uses of their publications by “information society service providers” (ISSPs), in line with the Directive. But the Italian law does not stop there. It also:

• Obliges ISSPs to pay “fair compensation” for the online use of press publications;
• Imposes duties to enter into negotiations, to provide publishers and the regulator with data needed to calculate that compensation, and to refrain from reducing visibility of publishers’ content in search results while negotiations are ongoing;
• Empowers AGCOM to adopt criteria for calculating fair compensation, to select between the parties’ proposals or set an amount ex officio where they cannot agree, and to enforce the data‑disclosure duty with fines of up to 1% of the ISSP’s turnover.

Meta challenged both the statute and AGCOM’s implementing decision, arguing that Article 15 creates only exclusive rights, not a new right to remuneration, and that the Italian framework amounts to an unjustified, disproportionate restriction on its freedom to conduct a business. The Italian administrative court asked Luxembourg whether this goes beyond what Article 15 and the Charter allow.

Article 15 as a fully‑harmonised exclusive right – with room for structured remuneration

The Court’s first move is to characterise Article 15. It reads Article 15(1) together with Articles 2 and 3(2) of the InfoSoc Directive and holds that:

• Article 15 fully harmonises the substantive content of the right granted to press publishers, for online uses by ISSPs;
• that right is exclusive and preventive in nature: publishers can authorize or prohibit uses, subject to the usual exceptions and limitations.

On this basis, the Court is clear that Member States may not transpose Article 15 by replacing the exclusive right with a bare right to remuneration. Publishers must retain the possibility of saying “no” and of licensing their content free of charge, including through non‑exclusive free licences as envisaged in recital (82) of the Directive.

Yet, here comes the important nuance: the Court also recognises that remuneration is inherent in exclusive rights. Because publishers can condition their authorisation on payment, Member States may design mechanisms “to ensure fair remuneration”, so long as those mechanisms do not alter the essential nature of the Article 15 right.

The Italian notion of “fair compensation” survives the test on one crucial condition: it must be interpreted as the price of a licence that publishers remain free to grant or withhold, not as an automatic levy detached from any voluntary authorisation. ISSPs, for their part, must not be subject to any payment obligation where they do not use or do not intend to use press content.

This is the core of the Court’s “regulated contractual freedom” model: Article 15 guarantees an EU‑wide, fully harmonised exclusive right. Within that framework, Member States may structure how parties reach remuneration – but cannot force either side into a licence or remove the option of free licensing.

Negotiation, data and visibility: correcting bargaining power asymmetries

The more novel part of the judgment concerns the obligations imposed on platforms: mandatory negotiations, data‑disclosure, and a ban on downranking during talks.

The Court accepts that Member States enjoy some discretion over the means used to implement Article 15, provided they respect the right’s nature and objectives. It then frames the Italian obligations in competition‑like terms: they are response mechanisms to “structural” information asymmetries and bargaining‑power imbalances between large platforms and press publishers.

Only ISSPs hold granular data on the advertising and traffic value generated by press content on their services. Without access to that information, publishers are negotiating in the dark. Similarly, the ability to adjust visibility algorithmically during negotiations can be used as leverage that further skews bargaining.

Against this background, the Court concludes that:

• an obligation to enter into negotiations and to provide data necessary to assess the economic value of use can legitimately “strengthen the level of protection” granted by Article 15;
• a prohibition on unjustified reductions in visibility during negotiations can be justified as a way to prevent platforms from undermining the very value publishers would be paid for.

These obligations are acceptable, however, only in respect of ISSPs that use or intend to use protected press publications. If extended to operators with no such use, they would no longer be compatible with Article 15. The Court leaves it to the national court to verify how far the Italian law goes in practice.

AGCOM as price‑setter: when does regulatory intervention remain “contractual”?

The Italian law goes further than mandatory negotiation (when ISSPs use press publications). It lets AGCOM define reference criteria for calculating fair compensation (including a revenue base and a rate of up to 70%); select one of the parties’ proposals as compliant with those criteria or set the amount ex officio if none is suitable; and police the data‑disclosure obligation and impose fines.

Does this convert Article 15 into a public‑law tariff or compulsory licensing scheme? The Court’s answer is carefully hedged but essentially permissive.

It reasons that AGCOM’s determination of fair compensation is triggered only once an ISSP that uses or intends to use press content has engaged in negotiations and the parties have failed to agree. Crucially, even after AGCOM has set an amount, the parties remain free not to conclude a contract. In the Court’s eyes, this preserves the optional, exclusive character of the right: there is a suggested price‐point, backed by the authority of a regulator, but no public‑law obligation to license.

So long as that structure is respected in practice, the Court considers that public intervention of this kind can be a legitimate way of making Article 15 effective and of encouraging fair remuneration without displacing contractual freedom.

Freedom to conduct a business vs media pluralism and IP

Meta relied on Article 16 of the Charter (freedom to conduct a business) to challenge the Italian regime, arguing that the negotiation, data and visibility obligations, coupled with AGCOM’s powers and fines, represent a disproportionate interference.

The Court agrees that these elements do restrict Meta’s freedom to conduct a business. They affect its ability to organise its operations, decide how to display content and negotiate terms, and expose it to regulatory sanctions. But it finds the restrictions set by the Italian law are justified under Article 52(1) Charter for the reasons set out below:

• The measures are provided by law and do not affect the essence of the right: Meta can still offer its services, choose business models and argue its case in negotiations and before courts.
• They pursue legitimate objectives of general interest: protecting press publishers’ intellectual property (Article 17(2) Charter) and supporting media freedom and pluralism (Article 11(2)), both tied to the democratic values in Article 2 TEU.
• They are suitable, because they concretely enhance publishers’ bargaining position and the effectiveness of Article 15; and necessary, given the structural imbalances and absent credible less intrusive alternatives.
• On strict proportionality, the Court stresses safeguards: data‑disclosure is limited to information needed to determine remuneration, subject to confidentiality obligations; the maximum fine (1% of domestic turnover) is tied to the operator’s size and not manifestly excessive; the visibility obligation is confined to the negotiation period and there is no evidence that it imposes an unreasonable burden.

This balancing exercise matters beyond Article 15. It signals that the Court is prepared to accept targeted, information‑rich and procedurally structured duties on (large) intermediaries where these advance media pluralism and IP protection, as long as they remain context‑specific and proportionate.

No obligation to pay if you don’t use: the limits of Article 15 as a tool for “making platforms pay”

An important (and potentially overlooked) aspect of the judgment is what it does not do. The Court is explicit that Article 15 does not force ISSPs to pay in the absence of use:

• Member States may not impose “fair compensation” duties on services that do not use or do not intend to use press publications.
• Publishers must retain not only the ability to refuse authorisation, but also the freedom to license free of charge.

In practical terms, this means that Article 15 is not a generalised levy on platforms; it is a framework for licensing where use actually takes place. If an ISSP decides that it does not want to carry or index press content on terms that would require payment, it can opt out by ceasing to use that content. The Directive does not require it to license, and the Court is careful not to reopen that logic.

This design choice is defensible from a freedom‑to‑conduct‑a‑business perspective, but it has a significant implication: where a dominant platform can credibly threaten to de‑index or de‑feature press content to avoid paying for its use, the only meaningful constraints on that strategy lie outside copyright law – they lie in competition law.

We can already see that dynamic in enforcement:

• The French competition authority’s decisions in Google and neighbouring rights  show that when a dominant gatekeeper responds to new copyright obligations by limiting the display of press content or conditioning visibility on certain licensing terms, competition authorities are willing to treat that as a potential abuse of dominance, on top of whatever the copyright framework provides.
• The Commission has opened an antitrust investigation into Google’s use of publishers’ content to provide AI Overviews and AI Mode “without appropriate compensation to publishers and without offering them the possibility to refuse such use of their content”. While that case is rooted in abuse of dominance rules, it directly concerns the conditions under which news content is (or is not) displayed in an AI‑augmented environment.

Meta v AGCOM therefore confirms, in doctrinal terms, that Article 15 alone cannot guarantee that platforms will continue to use press content on remunerated terms. It ensures that, where they do, Member States may regulate bargaining and information flows quite aggressively. But if a platform chooses to “go dark”, the Directive has nothing to say. That gap is increasingly being filled by competition law (and potentially platform‑specific regimes like the Digital Markets Act).

Connecting the judgment to the Commission’s AI‑copyright initiative

The timing of the judgment matters. Just days before the ruling, the Commission launched a call for evidence on the review of the DSM Copyright Directive and on a targeted initiative for a better copyright environment for European creativity and innovation, with legislative proposals expected in Q1 2027. Generative AI is front and centre in that document.

The call for evidence identifies several problems:

• Generative AI offers opportunities for creativity and new revenue streams, but it also “poses a number of challenges for rightholders in controlling, licensing and being remunerated for the use of their works”.
• Existing instruments, including the DSM Copyright Directive and AI Act transparency obligations, “may not be sufficient” to address difficulties in controlling and licensing works for AI uses.
• The Commission is therefore exploring policy options such as:
  • improving rightholders’ access to information on the use of their content;
  • facilitating licensing through mediation or arbitration;
  • and “new measures to enable appropriate remuneration for creators” in the AI context.

The parallels with Meta v AGCOM are obvious. In that case, the Court blesses national rules that give rightholders access to usage and revenue data held only by the platform; introduce structured negotiation supported by a public authority; and empower that authority to set reference remuneration where bargaining fails – all while keeping the underlying right exclusively negotiable.

It is not hard to imagine a future EU AI‑copyright instrument borrowing these features: a right to information on AI training and inference uses, mandatory negotiations, and perhaps recourse to mediation/arbitration or an independent body that can fix remuneration in default of agreement – again without forcing either side to license, but shaping the structure and transparency of bargaining.

The call for evidence also explicitly references Member States’ and Parliament’s calls to revisit Article 15 and licensing in the age of AI. Meta v AGCOM thus arrives as the Court’s first guidance on how far legislators may go in “industrialising” licensing frameworks against (powerful) digital intermediaries without violating the Charter.

From platforms to models: what “regulated contractual freedom” might mean in the AI era

Seen through the AI lens, Meta v AGCOM suggests an emerging template for dealing with situations where AI providers have already used large quantities of copyright‑protected content without authorisation and without paying; and rightholders cannot realistically control or monitor use ex ante.

The Commission’s call for evidence acknowledges that the current acquis does not fully equip rightholders to control, license and be remunerated for AI uses of their works, and that further measures may be needed, especially around access to information, licensing mechanisms and appropriate remuneration.

The Meta judgment offers at least three design hints:

1. Keep the core rights exclusive, but regulate the bargaining environment.
   Rather than converting rights into compulsory levies, the Court is comfortable with strong regulatory scaffolding around licensing: mandatory negotiation, data‑disclosure, regulator‑facilitated price‑setting (as long as rightholders can still refuse to license, and users can still choose not to use).
2. Use information obligations as a central lever.
   Both the Italian scheme and the Commission’s call stress that rightholders need access to reliable usage and revenue data held by platforms or AI providers. Without that, “fair remuneration” is a slogan, not a legal standard.
3. Embed proportionality and targeted scope.
   The Court’s comfort with AGCOM’s powers depends on them being tied to actual or intended use of protected content, limited to necessary data, and coupled with confidentiality and proportionate fines. Any AI‑specific measures will need similarly careful tailoring.

Where next?

For platforms and publishers, Meta v AGCOM does not change the basic logic of Article 15: it is still an exclusive, negotiable right, not an automatic tax on linking. But the judgment validates a conception of Article 15 as a regulated bargaining framework, in which public authorities can play an active role in rebalancing negotiations without collapsing them into compulsory licensing.

For the Commission’s upcoming AI‑copyright initiative, the case is likely to be mined as doctrinal support for measures that deepen rightholders’ access to information about AI uses of their works; formalise structured negotiation and possibly mediation or arbitration; and explore ways of setting reference remuneration for certain uses, especially in highly concentrated markets, while keeping rights formally exclusive.

And for competition law, the judgment marks the outer boundary of what can be achieved through copyright alone. When a dominant service chooses to walk away rather than license press content, or uses AI‑based interfaces in ways that systematically reduce media visibility, the tools that remain are those of antitrust and ex ante platform regulation. That conversation has already started in cases targeting Google’s treatment of press publishers and it will only intensify as AI systems become the primary interface through which users encounter news.

The image was AI generated.