Joris DeeneThe answer is a nuanced yes: a member state may require online platforms to negotiate with press publishers, have them provide information, and give a regulator the power to set equitable remuneration - provided that the exclusive nature of the press publisher right is preserved and no payment obligation is imposed without actual use. Thus, on May 12, 2026, the Court of Justice ruled in the case C-797/23, Meta Platforms Ireland v. AGCOM. For the Belgian transposition law of June 19, 2022, currently the subject of an annulment appeal and a preliminary reference, the implications are significant.
The facts
Italy adopted Article 15 of the DSM Directive transposed through Article 43 bis of the Italian Copyright Law (Law No. 633/1941). In doing so, the Italian legislature introduced not only the exclusive neighboring right for press publishers, but also a comprehensive procedural framework around its exploitation.
Specifically, the Italian regime provides that information society service providers (ISSPs) owe press publishers “fair compensation” (equo compenso) for the online use of press publications. In addition, ISSPs are required to negotiate in good faith, not to limit the visibility of the publisher's content in search results during those negotiations, and to provide the information necessary to determine the compensation. The Italian regulator AGCOM was then given a dual role: it sets the criteria for calculating the fee and, in the absence of agreement, can itself set the amount. Failure to comply with the duty to provide information can be punished by an administrative fine of up to 1% of turnover.
Meta Platforms Ireland, operator of Facebook, challenged AGCOM Decision No. 3/23/CONS before the Tribunale amministrativo regionale per il Lazio. According to Meta, the Italian model goes further than Article 15 DSM allows: that article would only grant exclusive rights and not a right to compensation. Moreover, the duty to negotiate, the duty to inform and AGCOM's intervention would violate freedom to conduct a business (art. 16 Charter of Fundamental Rights of the European Union). The TAR Lazio referred three preliminary questions to the Court of Justice.
The decision
The Grand Chamber ruled - substantially in line with the conclusion of AG Szpunar - that the Italian model may be compatible with Union law, but attaches hard conditions to it.
The Court first notes that the first subparagraph of Article 15(1) of the DSM Directive constitutes a measure of complete harmonization as regards the substantive content of the rights. The rights of reproduction and making available to the public granted therein are exclusive rights of a preventive nature: any use of press publications falling within the scope of Article 15 requires the prior consent of the publisher. Thus, Member States have no discretion to modify such material content.
In addition, Member States do have a margin of discretion to regulate the modalities of exercise of those rights. That margin allows them to take measures to ensure the effectiveness of the exclusive right - including by setting up a negotiating structure - as long as those measures do not affect the nature and scope of the right and are consistent with both the general objective of the Directive and the specific objective of Article 15.
The Court then applies this test to the three parts of the Italian scheme.
“Fair compensation” is compatible with Article 15, provided it is understood as the economic consideration for the permission granted to ISSPs. However, Member States may not replace the exclusive right with a mere compensation claim, and they must ensure that press publishers can always (i) refuse to give consent, (ii) give consent free of charge, and (iii) not be forced to pay without actual or intended use by the ISSP.
The obligations imposed on ISSPs - duty of negotiation, duty of visibility and duty of information - concern modalities of implementation and are admissible only when the ISSP actually uses or intends to use press publications. According to the Court, they contribute to redressing economic imbalance and information asymmetry in favor of publishers, and thus to the objective of Article 15.
AGCOM's powers - setting criteria, determining the amount in the absence of agreement, monitoring and sanctioning - are also compatible with Article 15, insofar as they do not deprive the parties of their freedom to conclude an agreement or not and to freely determine its modalities. AGCOM's intervention must therefore be supportive, not coercive.
As for the test for freedom to conduct a business, the Court recognizes that the duty to inform and the duty to be visible are restrictions on that freedom. In doing so, the Court refines - beyond a mere repetition of Sky Österreich - that Article 16 of the Charter includes, in addition to the freedom to engage in an economic activity, the free choice of business partner and the freedom to determine the price of a service, and that the imposition of an obligation to contract constitutes a “substantial restriction” on the freedom of contract. In this case, that restriction is justified: it is provided for by law, does not affect the essential content of the freedom to conduct business, meets an objective of general interest (the protection of media pluralism, Art. 11(2) Charter, and of intellectual property rights, Art. 17(2) Charter), and is proportionate.
Finally, the Court stressed that it was up to the Lazio TAR to interpret the Italian provisions, in accordance with the Marleasing principle, as far as possible in conformity with the Directive.
Legal analysis and interpretation
Full harmonization of content, freedom of implementation
The ruling refines a dogmatic tension that often recurs in copyright and related rights. On the one hand, Article 15 DSM is an instrument of complete harmonization as far as the substantive content of the press publisher right is concerned: member states cannot tinker with that right by broadening, narrowing, or modifying its content. On the other hand, the Court leaves Member States a wide margin of discretion to organize the exercise of that right. This two-track approach is consistent with the earlier Pelham-line, where the Court has already held that provisions establishing exclusive rights of a neighboring nature are measures of full harmonization.
The importance of this distinction is significant. It makes it possible to reconcile national accompanying mechanisms - duty of negotiation, transparency obligations, mediating role of a supervisor - with the European harmonization ambition. Those like Meta who defend the position that Article 15 prohibits any national “extra layer” will not get a hearing: only structural breaches of exclusivity are problematic.
The exclusive right is and remains a veto right - even in the AI debate
The most fundamental passage of the ruling is that a Member State may not convert the exclusive right into a mere remuneration claim. The Court thus confirms that a neighboring right is by its nature a preventive veto right: the rightholder can prohibit any exploitation ex ante, even if remuneration is offered.
That affirmation extends beyond the press and platform sector. The ongoing debate on generative AI includes proposals to decouple text and data mining on copyrighted material from permission, and replace it with a mandatory fee. The Meta ruling removes the legal basis under that avenue: as long as Article 4 DSM (TDM exception) in its current format honors the opt-out of rights holders, member states cannot introduce compulsory licensing through backdoor constructions that erodes the exclusive nature of copyright. This is an important signal to both legislators and the marketplace.
Freedom to conduct a busniness takes on sharper contours - even beyond press publishing law
A passage relevant to practice is r.o. 86, where the Court refines the content of Article 16 Charter. Freedom to conduct a business includes not only the general right to engage in an economic activity, but also - through freedom of contract - the freedom to choose with whom to do business and the freedom to set the price for a service. Imposing an obligation to contract is “a substantial restriction” on that freedom of contract. Restrictions are permissible only if they are provided for by law, respect substantial content, and - under the proportionality test - are necessary and actually meet an objective of general interest or the protection of the rights of others.
The Court finds that the Italian restriction passes that test, but the message for other regulatory contexts is clear: not every regulatory restriction on a platform's business model will clear that hurdle. One can think of the “Consent or Pay” debate here: when regulators intervene in a GDPR context to prevent platforms from offering users a choice between consent for personalized ads and a paid subscription, they directly touch on the free choice of business partner and the freedom to set the price for a service - core components of Article 16 Charter as clarified by the Court in this ruling. The same reasoning applies to regulations in adtech (DSA, personalized ads, dark patterns surveillance). Whether these restrictions are “necessary and proportionate” in each case will have to be justified much more concretely in future than has been done so far.
No obligation for reimbursement without actual use
A second key passage is that Article 15 imposes obligations on ISSPs only insofar as they effectively use or intend to use press publications. The Court specifies that no payment or negotiation obligation can be imposed on platforms that do not use the protected publications.
Linked to this is immediately the question - left unanswered by the Court - of whether platforms that display press publications via uploads by users are thereby “making their own use” of those publications within the meaning of Article 15. At least for Facebook, AG Szpunar's opinion saw self use by the platform, since Facebook itself determines through its algorithms which news content is shown to which user. The Court leaves this issue open. The parallel with the YouTube-ruling is obvious, but it is waiting for an actual infringement case to be decided. For social networks that live primarily on news content shared by users, the stakes are high here.
The Belgian echo: Constitutional Court ruling 98/2024
The ruling also affects Belgian legal practice. By ruling No. 98/2024 of September 26, 2024, the Constitutional Court, in the joined actions for annulment brought by Google, Spotify, Meta, Streamz and Sony against the law of June 19, 2022 (DSM implementation), refferred thirteen preliminary questions to the Court of Justice (case C-663/24). Several of these run parallel to the Italian issues: whether the Belgian transposition through a negotiated procedure under the supervision of the BIPT is compatible with Article 15 DSM; whether Art. XI.216/2, § 3 CEL adequately delineates the information obligation; and whether the regulation is proportionate to the freedom of enterprise.
Incidentally, Belgium itself intervened in the Italian case, and the similarities between the Italian and Belgian models are striking: a duty to negotiate has also been introduced in Belgium, with dispute resolution by BIPT and information obligations for ISSPs. The Meta ruling will largely outline the marching path for Case C-663/24. It is likely that the Court of Justice will validate the Belgian regime in a similar manner, provided that it is interpreted in accordance with the Directive in the sense that (i) the exclusive nature is preserved, (ii) the obligation to negotiate only comes into play in case of actual or intended use, and (iii) the BIPT only acts in a supportive manner without forcing the parties to contract.
Some Belgian provisions deserve attention on the latter point. The first preliminary question of the Constitutional Court explicitly refers to the possibility that the Belgian regulation would lead to an obligation of remuneration for publications that the press publishers themselves have placed online. The Meta ruling categorically rules out such an obligation: without use by the ISSP, no obligation to pay remuneration. To the extent that the Belgian law would have been construed more broadly, it will have to be narrowed in accordance with the Directive.
Specifically, what does this mean?
For online platforms and information society service providers. Those operating in Belgium who reuse press publications - news aggregation, social media with algorithmic news feeds, clipping services - must reckon with a bargaining and information regime recognized as legitimate by the Court of Justice. Opposition to the regime “as a whole” has little chance of success; the strategic space lies elsewhere. Three levers deserve attention: first, sharply defining what qualifies as “use” within the meaning of Article 15 (mere hyperlinking and short excerpts escape), second, invoking the right not to enter into an agreement or to use press publications only under certain conditions, and third, testing each concrete BIPT intervention against the proportionality requirement that the Court makes explicit in the paragraphs on Article 16 Charter. The obligation to provide business-sensitive information remains a concern - the ruling explicitly recognizes the need to respect the confidentiality of commercial and financial information.
For press publishers. The ruling strengthens the starting position of publishers in negotiations. They retain their right of veto and can count on a legally anchored transparency obligation on the part of the platform. At the same time, realism is called for: the Court confirms that platforms cannot be forced to use press publications, and therefore cannot be forced to pay for publications they do not wish to include. Threat of “delisting” thus remains a real scenario, albeit tempered by the duty of visibility during ongoing negotiations. In practice, this means that collective organization (joint negotiation through a management organisation or consortium) remains an important lever to provide a credible counterweight to the market power of the large platforms.
For the Belgian legislature and the BIPT. The ruling provides a clear framework for the future functioning of BIPT as a dispute settlement authority. Its role should remain supportive: propose criteria, set compensation in the absence of agreement, but not force parties to enter into an agreement. A directive-compliant interpretation of Art. XI.216/2 CEL urges itself pending the ruling in Case C-663/24. Ongoing negotiations or disputes already pending before the BIPT would do well to explicitly incorporate the Meta ruling in their arguments.
Frequently asked questions (FAQ)
Should an online platform always pay press publishers to display news articles
No. A fee is only due when the platform actually uses or intends to use the press publication in a way that falls within the scope of press publisher rights. Mere hyperlinking, the display of single words and the display of very short excerpts fall outside the law. Moreover, press publishers remain free to refuse permission or grant it free of charge.
What does this ruling change for the Belgian law of June 19, 2022?
The ruling validates the type of bargaining regime established in Belgium, subject to directive-compliant interpretation. The pending preliminary ruling before the Court of Justice (C-663/24), following Constitutional Court ruling No. 98/2024, will refine the Belgian specifics. However, the core coordinates - exclusive right, no remuneration without use, supporting role of BIPT - are fixed.
What is the relevance of this ruling to the broader debate on AI and copyright?
The Court confirms that exclusive copyright and related rights are preventive veto rights that cannot be replaced by mandatory remuneration schemes. Proposals to allow AI training on protected material for statutory remuneration, without the prior consent of the rightholder, lack a legal basis in the current Union law framework.
Conclusion
The Meta ruling draws a balance: member states may frame the press publisher right with procedural tailoring, but may not erode the exclusive, preventive nature of that right. For Belgium, this means that the law of June 19, 2022 remains essentially intact, provided that it is interpreted in accordance with the Directive: BIPT provides guidance and arbitrates, but does not impose contracts. At the same time, the ruling extends further: the tightening of the freedom of entrepreneurship gives platforms ammunition against regulatory intervention that affects their freedom of contract and their pricing - a track that will emerge in numerous GDPR, adtech and AI files in the coming years.
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