Insights: The European Court of Justice affirms the right to fair remuneration for publishers

Introduction

Over the past two decades, online platforms and news aggregators have fundamentally disrupted the business models of traditional press publishers, eroding advertising revenue and threatening the viability of quality journalism. In response, the European Union adopted Directive 2019/790 on Copyright in the Digital Single Market (“DSM Directive”), which introduced, in Article 15, a new related right for press publishers covering the online use of their publications by platforms such as news aggregators, search engines, and social media companies.

Italy incorporated the DSM Directive into domestic law by enacting legislation that entitles publishers to fair compensation for the online use of their publications, and by establishing a system administered by the Italian Communications Regulatory Authority (AGCOM) to give effect to that entitlement.

In 2023, AGCOM defined the criteria for calculating that remuneration. Meta Platforms Ireland (Meta), the operator of Facebook, challenged both the AGCOM decision and the underlying Italian legislation before the Lazio Regional Administrative Court, arguing that they were incompatible with EU law.

That court referred the matter to the European Union Court of Justice for a preliminary ruling.

On 12 May 2026, the Court of Justice delivered its judgment.

The Court’s decision and key takeaways

The Court confirmed that Member States may entitle publishers to fair remuneration, and not merely the right to prohibit the use of their content, provided that the following conditions are met:

• The payment must constitute genuine consideration for authorisation;
• Publishers must retain the ability to refuse or grant that authorisation for free; and
• No payment may be required where a provider does not use the publications in question.

The Court upheld the procedural obligations that Meta challenged: the duty to negotiate, to refrain from limiting content visibility during negotiations, and to disclose the data needed to calculate remuneration, finding them justified and proportionate.

The Court’s reasoning centred on the fundamental information asymmetry between platforms and publishers: only platforms hold the revenue data necessary to assess the economic value of press publications. Without disclosure obligations, publishers must negotiate without the information they need to do so effectively. The prohibition on limiting content visibility addresses a related concern by preventing platforms from pressuring publishers through threats to de-rank their content during negotiations. The Court also endorsed Italy’s decision to empower AGCOM to set remuneration criteria, resolve disputes, and impose penalties as a permissible means of ensuring effective enforcement.

The Court further held that these obligations strike a fair balance between the freedom to conduct a business under Article 16 of the EU Charter and the rights to intellectual property and to freedom and pluralism of the media. The latter right underpins democratic discourse and public access to reliable information. This judgment strengthens publishers’ negotiating power and confirms that platforms may not deploy their informational advantage to frustrate remuneration obligations. Readers should consider the judgment alongside the EU’s Digital Markets Act and Digital Services Act as part of a broader effort to rebalance the relationship between large platforms and the content creators who sustain them.

Why the judgment matters

The legal contest between news publishers and large digital platforms is not uniquely European. In Australia, the News Media Bargaining Code requires platforms to reach commercial deals or face binding arbitration. In Canada, the Online News Act takes a comparable approach. African jurisdictions, including South Africa, have begun to engage with these questions — the South African Competition Commission recently released its final recommendations in its Media and Digital Markets Platforms Market Inquiry.

The Court of Justice’s ruling demonstrates a system in which publishers hold meaningful rights, platforms cannot exploit informational asymmetry to suppress remuneration, and a regulator can intervene in the event of negotiation failures. This accords with a fundamental rights framework that values both commercial activity and the structural conditions for a free press.

Conclusion

This judgment advances the effort to sustain journalism through the media industry’s digital transformation. By confirming that fair remuneration frameworks and robust procedural obligations are compatible with EU law, the Court of Justice has authorised Member States to hold large platforms accountable, not merely as copyright infringers, but as beneficiaries of journalistic labour who must contribute to its continuation.

The case will now return to the Italian administrative court for final determination in light of the Court’s ruling.

This Insight was prepared by Claire Dehosse, an Associate at ALT Advisory.

Please note: The information contained in this Insight is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].