Europe’s top court has said Google may be liable over YouTube videos promoting online gambling, in a ruling that could keep the Italian fine against Google Ireland Ltd in place if the national court follows its guidance.
In case C-421/24 AGCOM (Online gambling), the Court of Justice of the European Union said the usual exemption for hosting providers applies only when a platform acts as a strictly technical, automated and passive intermediary with no knowledge or control over the material it stores. That was not the case, the court said, where an operator reviewed a channel’s main theme, its most viewed or newest videos, and related metadata to conclude a commercial partnership.
The videos at issue were posted by a content creator bound to Google through a commercial partnership agreement that included a revenue split from advertising shown before each video. The court said Google may be held liable for those videos in those circumstances.
The dispute began after AGCOM, Italy’s communications authority, imposed a €750,000 sanction on Google Ireland Ltd on 19 July 2022 and ordered the removal from YouTube of several videos promoting online gambling in breach of Italian law. Google appealed to an Italian administrative court and argued that EU e-commerce rules shielded it from liability for third-party content.
AGCOM argued that the liability derogation did not apply because gambling falls outside the scope of EU harmonisation on electronic commerce. The CJEU accepted that EU law excludes gambling, and activities connected to it, from that harmonisation because of significant moral, religious and cultural differences among member states.
But the court also said that online hosting activity is not intrinsically connected to gambling, because it can consist of storing user-provided content neutrally and without promotional purpose. Hosting advertising content relating to online gambling, it said, does not fall within the exclusion and instead falls under the EU rules on electronic commerce.
The judges added that a platform cannot claim the intermediary-service exemption if it examines a channel’s theme, most viewed or newest videos and metadata in order to strike a partnership. Once the operator acquires concrete knowledge of the essential content of a set of videos, it cannot rely on that passive-hosting defence.
The case also fits a broader enforcement pattern in Italy. In October 2020, AGCOM fined the Google search engine €100,000 over the gambling-ad ban. In August 2022, in decisions no. 275/22/CONS and 288/22/CONS, it also fined Top Ads Ltd €700,000 and, for the first time, issued notice-and-take-down orders for 625 instances of illegal content as well as a notice-and-stay-down order for prohibited gambling advertising on YouTube.
The Italian Council of State referred the dispute to Luxembourg, and the CJEU said it is now for the national judge to verify whether Google could reasonably have ignored that the channel’s main theme was games of chance and that it contained videos promoting them.
