Mark Zuckerberg’s Meta Platforms has faced major legal problems in Europe after the bloc’s highest court ruled that national regulators have the power to enforce compensation arrangements between online platforms and news publishers for the use of their journalism.
The Court of Justice of the European Union, sitting in Luxembourg, ruled in favor of the Italian communications regulator, AGCOM, which Meta had accused of overstepping its quota by setting the price the media group must pay for showing snippets of headlines on Facebook and Instagram. The decision is likely to strengthen newspaper groups across the continent, including the UK, which have long argued that they are negotiating in a position of structural weakness against a number of American technology platforms.
“The court finds that the right to fair compensation for publishers is consistent with EU law, as long as that payment includes consideration for authorizing their publication to be used online,” the judges said in their decision.
Meta argued that Italy’s measures are inconsistent with the rights publishers already enjoy under European copyright law, and that allowing the country’s regulators to dictate commercial terms amounts to overreach. The company, which owns WhatsApp alongside prominent social networks, said it would fully investigate the decision and “cooperate constructively as the matter returns to the Italian courts”.
In Britain’s troubled publishing industry, where regional titles in particular have been decimated over the past decade as advertising money has moved to Silicon Valley, the decision will be watched closely. Although the UK is not bound by the decisions of the Court of Justice following Brexit, Westminster has been drafting its own enforcement framework to strike commercial agreements with media publishers under the Digital Markets, Competition and Consumers Act. The European judgment provides political cover for ministers willing to take a hard line.
The European Publishers Council was quick to say it won. Angela Mills Wade, its executive director, said the decision acknowledges “the economic reality that publishers cannot negotiate on an equal footing with leading online platforms without transparency, access to relevant data, and protection from coercive conduct”.
“This important decision comes at a time when the use of AI-driven and content platforms for journalists is expanding rapidly,” he added. “This important decision will pave the way for fair discussions with the gatekeepers who have been abusing their power by refusing to engage in honest dialogue. Quality journalism depends on the ability of publishers to recoup their investment in order to produce reliable news and information.”
The decision comes at a difficult time for the relationship between the technology industry and the creative economy. Earlier this month, five of the world’s largest publishing houses, including Elsevier, Hachette and Macmillan, sued Meta in New York federal court, claiming the Silicon Valley group looted millions of books and educational articles to train Llama, its main language model. Works cited in the complaint include NK Jemisin’s award-winning novel The Fifth Season and Peter Brown’s best-selling children’s book The Wild Robot.
Meta has vowed to fight the case “with violence”, but the action is a sign of a wider reckoning. Anthropic, an AI startup backed by Amazon and Google, last year became the first artificial intelligence company to settle such a claim, agreeing to pay a group of authors $1.5 billion to settle lawsuits the company’s lawyers fear would have fetched billions if it had gone to trial.
For owner-managed publishers, independent journalists and the wider content economy, the way forward is becoming clearer. After twenty years in which platforms reaped the benefits of programming mainly on their own terms, the legal pendulum is swinging, slowly, but undoubtedly, back to those who produced the work in the first place. Whether the compensation from decisions like this will be enough to sustain quality journalism is a different, and more difficult, question.
