Fair compensation, the Council of State puts the Agcom regulation back on track

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The Council of State expressed its opinion and gave Agcom a point in the dispute with Meta-Facebook. And the Agcom regulation on fair compensation is back in operation.

The Meta appeal married by the TAR

The basis of the order, following the hearing of last March 7, is the appeal, presented by Agcom, against the decision of the TAR which, in response to an appeal by Meta, awaiting the opinion requested from the EU Court of Justice has suspended the application of the regulation on the recognition of fair compensation for publishers for the use of their articles by online platforms, including social networks, with the possibility for authors to receive a share of the proceeds.

The protests of Agcom and Fieg

The Authority chaired by Giacomo Lasorella presented an appeal, in which the Federation of Publishers (Fieg) also joined, contesting a measure which places a serious threat against the concrete application of the mechanism designed to guarantee fair compensation to publishers and authors from part of web giants like Facebook.

The absence of the «periculum in mora»

The resolution that produced the Agcom regulation came in implementation of article 43-bis of the copyright law. Which provides for the possibility of private negotiation between publishers and platforms but also the possibility of giving Agcom the option of assisted negotiation in the event of a dispute. The TAR threw the ball into the half-court of the EU Court of Justice. The precautionary block of the regulation, however, according to the appellants, lacked the requirement of periculum in mora, and therefore the irreparability of the damage, combined with the non-consideration of the “value gap” principle sanctioned by the EU.

The decision of the Council of State

According to the Council of State «the prejudices presented by Meta Platforms are not concrete and current (a future risk of sanctions is feared)» and are «not even serious and irreparable». Furthermore, “the regulation attached to the Agcom resolution effectively provides a mechanism for reaching an agreement but the right to appeal to the competent judge remains intact”.

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