Judgment of the Court of Justice of the European Union | AGCOM (Online Gambling) C-421/24. The Court held that a platform which reviews a channel's theme, most-viewed videos and metadata can no longer be regarded as a merely technical and passive service provider.
On 19 July 2022 the Italian Communications Regulatory Authority (AGCOM) imposed an administrative fine of EUR 750,000 on Google Ireland Ltd and ordered the removal of several YouTube videos that promoted online gambling in breach of Italian law.
The videos had been uploaded by a content creator who had a commercial partnership agreement with Google. Under that agreement, revenue from the advertisements shown before each video was shared between the parties. Before concluding the agreement, Google had reviewed the creator's videos, the channel's main theme, its most-viewed or most recent videos and the related metadata.
Google brought an action for annulment before the Italian administrative courts, relying on the Digital Services Act (DSA) and in particular on the liability exemption (safe harbour) granted to hosting service providers for content uploaded by third parties. AGCOM argued that the exemption could not apply because online gambling constitutes illegal content.
The dispute reached the Italian Council of State, which referred questions on the interpretation of EU law to the Court of Justice of the European Union for a preliminary ruling.
The Court's Assessment
The Court first noted that, owing to significant moral, religious and cultural differences between Member States regarding gambling, EU law excludes gambling activities and all activities connected with them from harmonisation in the field of electronic commerce.
However, the Court held that a hosting service is not, by its nature, related to gambling: it consists merely of the neutral storage of content without any promotional purpose. The DSA therefore also applies to the hosting of advertising content relating to online gambling.
Referring to its settled case-law, the Court further stressed that to benefit from the liability exemption a platform must act as an "intermediary service provider", meaning that its activity must be merely technical, automatic and passive, with neither knowledge of nor control over the information transmitted or stored.
According to the Court, where a platform reviews a YouTube channel's main theme, its most-viewed or most recent videos and the related metadata, it can no longer be regarded as a merely technical and passive service provider.
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