An adviser to the EU’s top court ruled on Thursday that individual member states are free to introduce rules aimed at strengthening publishers’ leverage when dealing with major online platforms like Meta, provided those rules do not trample on freedom of contract.
The case in point is an ongoing dispute between Facebook, WhatsApp, Threads, and Instagram owner – Meta Platforms and Italy’s communications watchdog, AGCOM, over fees for using short excerpts of news articles. Meta questioned whether Italy’s national implementation of the EU copyright directive clashed with the rights publishers already enjoy under EU law.
Court wants fairness in revenue sharing
In his opinion, Advocate General Maciej Szpunar noted that the EU legislature intended more than just giving publishers a veto if platforms published their content without payment. Instead, the directive’s goal is to set clear ground rules for usage and make sure publishers secure a fair slice of the money platforms earn from sharing their materials.
“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.”
– Advocate General Maciej Szpunar.
“The limitations introduced pursue a public interest recognised by the EU legislature: strengthening the economic viability of the press, a key pillar of democracy,” he wrote, emphasizing that the measures seek to bolster the press’s financial health, a vital component of a democratic society.
Szpunar highlighted that these limitations serve a recognized public interest; they aim to shore up the press’s economic viability. Without robust newspapers and news sites, citizens risk losing a key watchdog over governments and businesses.
The adviser insisted that publishers should be able to negotiate payment terms that reflect the real value of their journalism, ensuring they’re not left empty-handed while platforms profit from their work.
This marks one of the many disputes among publishers and tech firms over the use of content, with Google’s AI Overview in the spotlight, accused by publishers of automatically generating summaries that appear above traditional search links and shown to more than a hundred countries.
Meta laments over the fragmentation of rules across the bloc
Meta has indicated it will wait for the court’s final ruling but maintains that Italy’s execution of the directive undermines the goal of harmonized copyright rules across the EU.
“We need consistent legislation,” a Meta spokesperson said.
“Fragmentation across member states stifles innovation and leads to legal uncertainty.”
– Meta spokesperson.
The company argues that a patchwork of national rules could create complex, conflicting obligations for digital services operating throughout the bloc.
In his opinion (the Meta spokesperson), Szpunar said the Italian regulator should bear 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.
Still, Szpunar warned that AGCOM’s powers, ranging from setting benchmark criteria for remuneration to adjudicating disputes and monitoring information disclosures, must be exercised with restraint.
Those powers are permissible, he suggested, only if they assist rather than coerce the parties into abandoning their freedom to draft contracts as they see fit. Any overreach could undo the directive’s purpose by eroding the very contractual autonomy it seeks to uphold.
The European Court of Justice normally endorses the majority of the advocate-general’s advice, though its rulings are not bound to follow it. A final decision is expected in the coming months.
Until then, publishers, platforms, and regulators across the EU will be watching closely, eager to see whether national measures like Italy’s will stand or if a more uniform approach will prevail in shaping the future of digital news sharing.
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