Session 7: Online Platforms and Intermediary Liability for IP Infringement
Court of Justice of the European Union (Grand Chamber) [2026]: Meta Platforms Ireland Limited v Autorità per le Garanzie nelle Comunicazioni, Case No. C-797/23
Date of judgment: May 12, 2026
Issuing authority: Court of Justice of the European Union
Level of issuing authority: Final Instance
Type of procedure: Judicial (Administrative)
Subject matter: Copyright and Related Rights (Neighboring Rights); IP Regulatory Body
Plaintiff/Appellant: Meta Platforms Ireland Limited
Defendant/Respondent: Autorità per le Garanzie nelle Comunicazioni
Keywords: Preliminary ruling; Press publications; Exclusive rights; Online use; Fair compensation; Information society service providers; Administrative authority; Fundamental rights; Proportionality
Basic facts:
In this case, the Court of Justice of the European Union rules on the interpretation of Article 15 of EU Directive 2019/790 which provides publishers of press publications established in a Member State with the exclusive rights of reproduction and of making available a work to the public for the online use of their press publications by information society service providers (ISSPs).
The Italian legislature transposed that provision though Article 43-bis of the Law on Copyright. It provides the publishers of press publications with a right to fair remuneration for the online use of their publications and establishes a system intended to ensure the payment of such remuneration. This system requires ISSPs to provide the data necessary for calculating the remuneration and to negotiate with the publishers that remuneration, without limiting the visibility of their contents in search results during the negotiations. It also entrusts Italy’s Communications Regulatory Authority, the Autorità per le Garanzie nelle Comunicazioni (AGCOM), with the task of laying down the criteria for determining that remuneration, and ensuring compliance with the obligation of ISSPs, also by means of penalties. In the event of disagreement over that remuneration, AGCOM is entitled to set its amount.
On 19 January 2023, AGCOM adopted Decision No 3/23/CONS on the basis of that law. That decision lays down the criteria for determining the fair compensation payable to publishers by ISSPs for the online use of press publications. Meta Platforms Ireland Ltd brought an action before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy) seeking annulment of AGCOM’s decision.
Having doubts as to the compatibility of the national legislation with EU law, that court decided to refer questions to the Court of Justice about the interpretation of Article 15 of Directive 2019/790 and Articles 16 and 52 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
Held: Article 15 of Directive 2019/790 and Articles 16 and 52 of the Charter do not preclude national legislation which:
- confers on publishers a right to fair remuneration in return for the authorization to use their publications granted to ISSPs,
- imposes certain obligations on those providers and which empowers a public authority to define the benchmark criteria to be used to determine that remuneration and to monitor compliance with one of the obligations as well as to penalize non-compliance,
provided, on the one hand, that that legislation does not deprive publishers of the possibility of refusing to grant such authorization, or that of granting such authorization free of charge, and that it does not impose on providers any payment obligation unrelated to the use of such publications, and, on the other, that the obligations and any penalties imposed on them comply with the principle of proportionality.
Relevant holdings in relation to online platforms, intermediaries, and IP rights in the digital environment:
In the first place, the Court of Justice recalls that Article 15 of Directive 2019/790 is a measure of full harmonization which means that Member States have no discretion to regulate the substantive aspects governed by that provision. They nevertheless, when transposing that provision, enjoy discretion as to the manner in which it is to be implemented.
Concerning the extent of the discretion enjoyed by the Member States in the context of the transposition of that Article 15, the Court of Justice states that the detailed rules for implementation cannot have the effect of altering the substantive law, in particular its content and scope, and must be fully compatible with both the general objective of that directive and the specific objective of Article 15 thereof.
In that regard, the Court of Justice considers, first, that the general objective of that directive is to harmonize the laws of the Member States on copyright and related rights, while keeping a high level of protection of those rights and contributing to the achievement of a well-functioning and fair marketplace for copyright. As regards to the specific objective of Article 15 of Directive 2019/790, the introduction into EU law of the rights enshrined in that article aims to address the problems that publishers face in licensing the online uses of their publications by ISSPs and to ensure that they may recoup the investments required to produce those publications.
Second, the Court of Justice notes, on the one hand, that the exclusive rights enshrined in Article 15 are preventive in nature. This means that any use of press publications falling within the scope of that article requires prior authorization from the publishers of such publications.
On the other hand, the Court of Justice also stresses that publishers must be able to grant the authorization for online uses of their press publications free of charge or to prohibit such uses. At the same time, ISSPs must, for their part, retain the freedom whether to make such use. Therefore, no payment obligation may be imposed on them under Article 15 of Directive 2019/790 where they do not use nor intend to use those press publications.
In the present case, the Court of Justice states that the obligations imposed on ISSPs by that national legislation, namely the obligation to provide the data necessary for determining the amount of remuneration and the obligation to refrain from limiting the visibility of press publications in the search results during negotiations, contribute to the attainment of the objectives of Directive 2019/790 and Article 15 thereof, by strengthening the level of protection intended. Indeed, only those providers possess the relevant information needed to assess the economic value of the online use of press publications, which places the publishers of those publications in a weaker negotiating position as regards the determination of their remuneration.
Therefore, those obligations make it possible to ensure that negotiations between providers and publishers are fair and that the publishers are able to decide freely and on the basis of all relevant information whether and, if so, for what remuneration, they may wish to grant providers authorization to reproduce press publications or make them available to the public.
Last, as regards the powers conferred on AGCOM, the Court of Justice finds that, despite the role of that authority in determining the amount of the remuneration, ISSPs and publishers remain free not to conclude a contract. The power of that authority to monitor compliance with the obligation to provide information incumbent on providers and to penalize any infringements cannot be regarded as contrary to Article 15, subject to observance of the principle of proportionality.
In the second place, the Court of Justice examines whether a transposition into national law such as the Italian transposition of Article 15 complies with Article 16 and 52 of the Charter. The Court of Justice considers that the provision of ‘fair compensation’, understood as remuneration, freely determined by the parties, does not limit the providers’ freedom to conduct a business. However, that freedom is limited by the obligations to provide certain data and not to limit the visibility of publications, together with AGCOM’s related powers. The Court of Justice nevertheless finds that those limitations do not undermine the essence of that freedom and satisfy the principle of proportionality. The legislation is appropriate to the objective pursued, no less restrictive measure appears equally effective, and the data and penalties required are subject to appropriate safeguards. The obligations therefore strike a fair balance between the freedom to conduct a business under Article 16, the right to intellectual property under Article 17(2), and the freedom and pluralism of the media under Article 11(2).
Accordingly, the Court of Justice rules that Article 15 of Directive 2019/790 and Articles 16 and 52 of the Charter do not preclude national legislation which:
- confers on publishers a right to fair remuneration in return for the authorization to use their publications granted to ISSPs,
- imposes certain obligations on those providers and which empowers a public authority to define the benchmark criteria to be used to determine that remuneration and to monitor compliance with one of the obligations as well as to penalize non-compliance,
provided, on the one hand, that that legislation does not deprive publishers of the possibility of refusing to grant such authorization, or that of granting such authorization free of charge, and that it does not impose on providers any payment obligation unrelated to the use of such publications, and, on the other, that the obligations and any penalties imposed on them comply with the principle of proportionality.
Relevant legislation:
Charter of Fundamental Rights of the European Union (2000/C 364/01) (Articles 11, 16, 17, 51 and 52) (EU100); EU Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (Articles 2 and 3) (EU309); EU Directive 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Article 15) (EU240); Law No. 633 of April 22, 1941, on the Protection of Copyright and Neighboring Rights (as amended up to Law No. 142 of September 21, 2022), Italy (Article 43-bis) (IT232); AGCOM Decision No 3/23/CONS, Annex A: Regulation on the identification of benchmark criteria for determining fair compensation for the online use of press publication.