EU court rules Google not immune from liability over gambling videos

The case stems from a July 2022 decision by Italian communications regulator AGCOM, which fined Google Ireland €750,000 and ordered the removal of 630 videos promoting online gambling in breach of the country’s 2018 ban on all direct and indirect gambling advertising. 

The videos were uploaded across five channels run by creators participating in the YouTube Partner Programme under a revenue share contract, featuring content inviting users to send videos demonstrating winnings regardless of their age. 

Google challenged AGCOM’s action, arguing it qualified for the liability exemption available to hosting providers under Article 14 of the EU’s e-Commerce Directive.

The court confirmed that hosting user content remains covered by the directive even when it advertises gambling. Hosting such advertising is distinct from providing gambling services or advertising them directly. However, the exemption is only available when a platform’s role remains “technical, automatic and passive”, without knowledge of or control over the stored content.

By examining the channels before entering the revenue-sharing agreement, Google “acquires specific knowledge of the essential content” of the videos, the court said.

It added that Google “could not reasonably have been unaware” that the channels’ main theme was gambling and that they contained numerous videos promoting games of chance. The platform could therefore not claim to be acting as a neutral intermediary.

The judgment, however, does not itself confirm the €750,000 penalty. Italy’s Council of State, which referred the case to the EU court, must now apply the ruling when resolving the dispute between AGCOM and Google.

As suggested by Mr Gamble CEO Richard Dennys in a LinkedIn post, the ruling could pose broader implications for platforms working commercially with gambling content creators and affiliates. These include being held co-liable for promoting counterfeits and unsafe products as well as facilitating misleading commercial practices. 

“For years, brands let influencers produce whatever content they wanted as long as sales links were tracked. Now, if a brand or platform's affiliate team conducts pre-approval reviews of an influencer's channel to onboard them into a tiered commission structure, the brand is legally on the hook for what that influencer says in their videos,” Dennys said. 

“This ruling is now expected to unleash a wave of actions from consumer rights campaigners as well as brands themselves fighting counterfeit and grey market sellers.”

Pierric Blanchet, founder of the consulting firm The Gambling Cockpit, added that the ruling “accelerates a redistribution that was already underway” in affiliate partnerships, with the same logic expected to be applied to Google Ads. 

“Video-dependent affiliates – renting audiences from platforms whose terms they don't control – just saw their expiry date move forward,” Blanchet explained.  

“Gambling YouTube channels will probably have to make a choice: the operator's money or Google's, when in some cases they had both. And even if they choose the operator's option, which is more profitable, they're not safe from being blocked. At the end of the day, video channels that were for a long time the key product for some affiliates will probably see their valuation decline.”