On Thursday, 16 July, the Court of Justice of the EU (CJEU) ruled that Google could be held liable for YouTube videos made by a content creator with whom the company has a commercial partnership (Case C-421/24).
The Italian Council of State decided to refer questions to the Court of Justice after Google Ireland Ltd. brought an action against a July 2022 decision handed down by the Italian Communications Regulatory Authority (AGCOM), which imposed a €750,000 fine on the company and ordered it to remove several YouTube videos promoting online gambling in breach of Italian regulations.
The videos had been uploaded by a content creator with whom Google has a commercial partnership agreement that included a prerequisite review of the videos’ content, the channel’s theme, the most viewed or most recent videos, and the associated metadata.
Google invoked the liability exemption regime for hosting service providers with regard to content uploaded by third parties that is in EU law on electronic commerce. However, according to AGCOM, that exemption is inapplicable in this case, since gambling is excluded from the scope of the regulations.
In its judgment, the CJEU explains that the activity of online hosting is not intrinsically linked to gambling—which is excluded from EU law on electronic commerce—because hosting consists of storing content provided by users without the intention of promoting such content. Therefore, hosting advertising content related to online gambling does, indeed, fall under European regulations on electronic commerce.
Moreover, in order to benefit from the exemption from liability, the operator must act as an ‘intermediary service provider’ and thus must carry out a strictly technical, automated, and passive activity. The operator cannot claim to be acting as an ‘intermediary service provider’ if it examines—with the aim of concluding a commercial partnership contract—the main theme of a video channel, the most viewed or most recent videos, and the associated metadata.
According to the Court of Justice, it is up to the national court to verify, in the context of the commercial partnership contract concluded, whether Google could reasonably have been unaware that the main theme of the YouTube channel in question was gambling and games of chance and that the channel contained videos promoting such activities.
See the judgment: https://aeur.eu/f/mx8 (Original version in French by Camille-Cerise Gessant)