The Court of Justice of the European Union has ruled in Autorità per le Garanzie nelle Comunicazioni (AGCOM) v Google Ireland Limited (Case C-421/24) that Google may be unable to rely on the hosting exemption under the E-Commerce Directive (2000/31/EC) where, under a commercial partnership with a content creator, it reviewed the essential content of a YouTube channel and so acquired specific knowledge of potentially unlawful videos.
In July 2022, the Italian communications regulator, AGCOM, fined Google Ireland €750,000 and told it to remove several YouTube videos promoting online gambling, which AGCOM considered to breach Italian law.
The videos had been uploaded by a content creator who had entered into a commercial partnership agreement with Google under which advertising revenue generated before each video was shared. Before entering into that agreement, Google had reviewed the channel’s theme, its most viewed and most recent videos, and the associated metadata.
Google challenged AGCOM’s decision, relying on the hosting exemption in the Directive, which protects hosting service providers from liability for third-party content where the relevant conditions are met.
AGCOM argued that Google could not rely on that exemption because gambling activities are excluded from the scope of the Directive. The Italian courts referred the issue to the CJEU.
The judgment
The Court acknowledged that gambling, and activities linked to it, are excluded from the harmonised scope of the E-Commerce Directive, reflecting the significant moral, religious and cultural differences between Member States in this area.
However, it distinguished online hosting from gambling itself. Hosting consists of storing user-provided content in a neutral manner and is not, by its nature, an activity promoting gambling.
As a result, the hosting of advertising content relating to online gambling is not itself excluded from the Directive and may fall within the hosting regime. However, to benefit from the liability exemption, the platform operator must act as an intermediary service provider carrying out a merely technical, automatic and passive role, with neither knowledge of nor control over the information stored.
The Court held that this passive role is called into question where, before entering into a commercial partnership agreement, the platform operator reviews the main theme of a video channel, its most viewed or most recent videos, and the associated metadata. In those circumstances, the operator may acquire specific knowledge of the essential content of a set of videos and may therefore be unable to rely on the hosting exemption.
It will be for the Italian courts to determine whether, in connection with Google’s commercial partnership agreement, Google could reasonably have been unaware that the channel’s main theme was gambling and games of chance, and that the channel contained videos promoting those activities.
