Background
Italy’s Communications Regulator (AGCOM) imposed a €750,000 administrative fine on Google for violating Decree-Law No 87/2018, which prohibits all forms of gambling advertising. AGCOM found that YouTube content creators had promoted gambling websites through videos, with users invited to submit videos of their winnings. Google had concluded commercial partnership agreements with these creators under the YouTube Partner Programme, which involved revenue-sharing from advertising and required Google’s approval based on channel eligibility criteria.
A regional Italian administrative court initially sided with Google, classifying YouTube as a hosting service entitled to the liability exemption in Article 14 of Directive 2000/31/EC (the E-commerce Directive). AGCOM appealed to Italy’s Council of State, arguing that the E-commerce Directive does not apply to gambling advertising at all, and therefore Google cannot claim the hosting exemption. The Council of State referred two questions to the Court of Justice for preliminary ruling.
The Court’s Holding
The Court clarified the scope of the E-commerce Directive’s gambling exclusion and the conditions for the Article 14 hosting liability exemption. On the first question, the Court held that while Article 1(5)(d) excludes “gambling activities” from the directive’s scope, this exclusion does not extend to the activity of *hosting* gambling advertising. The exclusion covers gambling itself and advertising of gambling, but hosting—which is neutral infrastructure—is not intrinsically linked to gambling in the way that the advertising activity is. Member States retain discretion to regulate gambling according to their own values, but that regulatory goal does not require exempting neutral hosting services from the directive’s application.
On the second question, the Court held that Google does not qualify for Article 14’s hosting exemption in this case. Article 14 protects only truly neutral intermediaries that exercise a “technical, automatic and passive” role with “neither knowledge of nor control over the information.” Google’s examination of YouTube channels’ essential content—including their main theme, most-viewed and newest videos, and metadata—as a condition of entering revenue-sharing partnerships means Google had specific knowledge of the channels’ content. This examination went beyond standard automated checks and was tied to a commercial benefit (advertising revenue-sharing). Such conduct demonstrates an active rather than neutral role, depriving Google of the exemption. The Court found that Google could not reasonably have been unaware that the gambling-themed channels contained gambling advertising in breach of Italian law.
Key Takeaways
- Hosting services fall within the E-commerce Directive’s scope even when hosting gambling advertising, because hosting is neutral infrastructure separate from the gambling activity itself.
- Content examination tied to commercial partnerships—including revenue-sharing agreements—destroys a platform operator’s status as a neutral intermediary and eliminates Article 14 liability protection.
- Platform operators who review channel content to approve commercial arrangements gain “knowledge of essential content,” triggering liability for illegal material they host.
- Member States may regulate gambling advertising on platforms even though gambling activities themselves are excluded from the directive’s harmonized field.
Why It Matters
This decision significantly narrows the liability shield available to video platforms and content-monetization services. By linking the loss of the hosting exemption to revenue-sharing partnerships and content examination, the Court establishes that platforms cannot claim neutrality while actively curating and profiting from their creators’ content. Any examination of a channel’s substance as a gate to commercial benefits—not merely automated categorization for discoverability—constitutes the kind of knowledge and control that triggers operator liability. This applies across YouTube and similar platforms using creator-partnership models.
The ruling also clarifies that the E-commerce Directive’s exclusion for gambling activities does not carve out an exemption for all actors in the gambling ecosystem. While EU harmonization in gambling is limited and Member States enjoy regulatory latitude, platforms cannot use the gambling exclusion to escape liability for hosting and promoting gambling content. The decision underscores that intermediary liability protection is contingent on genuine neutrality—something difficult to maintain when revenue-sharing is involved.