The Court of Justice of the European Union has ruled that Google can be held responsible for YouTube videos published by a content creator who was bound by a commercial partnership. The case involves the Italian communications regulator Agcom.

On 19 July 2022 the Italian Authority for Communications Guarantees (Agcom) imposed a €750,000 fine on Google Ireland and ordered the removal from YouTube of several videos that promoted online gambling, in breach of Italian law.

Those videos had been published by a content creator tied to Google under a commercial partnership agreement that, in particular, provided for sharing advertising revenue shown before each video. The agreement was preceded by an assessment of the videos’ content, the channel’s theme, the most viewed or most recent videos, and their metadata.

Google challenged the measure before an Italian administrative court, invoking applicable EU law on electronic commerce—specifically the liability exemption enjoyed by hosting providers for third‐party content.

Agcom maintained that this exemption did not apply because gambling is excluded from the scope of EU e‐commerce harmonisation. The Italian Council of State, hearing the appeal, referred questions to the Court of Justice.

In its judgment, the Court recalls that Union law excludes gambling and related activities from the scope of e‐commerce harmonisation, owing to significant moral, religious and cultural differences between Member States.

However, online hosting activity is not intrinsically linked to gambling, as it consists of storing user‐provided content neutrally and without any promotional purpose.

Therefore, hosting advertising content related to online gambling falls within the scope of EU e‐commerce rules rather than within the exclusion for gambling activities.

Furthermore, to benefit from the liability exemption for content posted on a platform, the operator must act as an “intermediary service provider”—that is, perform a purely technical, automated and passive function that precludes any knowledge of or control over the information transmitted or stored.

This is not the case when an operator, in order to conclude a commercial partnership, reviews the main theme of a video channel, the channel’s most viewed or most recent videos, and the associated metadata. The operator thereby acquires concrete knowledge of the essential content of a set of videos and cannot claim to be acting as an intermediary service provider.

It is for the national court to determine, in the context of the partnership agreement with Google, whether Mountain View could reasonably have been unaware that the YouTube channel’s principal subject was gambling and that it contained videos promoting such games.