The Court of Justice of the European Union has ruled in a case that turns on a deceptively small question: whether a platform that shares advertising revenue with a creator is still merely hosting what that creator uploads.
The dispute began on 19 July 2022, when AGCOM, Italy’s communications authority, fined Google Ireland €750,000 and ordered it to take down YouTube videos promoting online gambling.
The videos breached Italy’s Dignity Decree, the 2018 law that bans direct and indirect advertising of games with cash prizes across every medium, and which is among the strictest regimes in Europe.
It arrives in a bad month for Google in Luxembourg. The same court upheld its €4.1bn Android fine two weeks ago, dismissing the final appeal.
Google challenged the decision before an Italian administrative court, invoking the liability exemption that EU electronic commerce law grants hosting providers for material uploaded by third parties.
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AGCOM’s answer was that the exemption does not reach gambling at all, because gambling sits outside the scope of the e-commerce rules.
Italy’s Council of State, hearing the appeal, referred the questions to Luxembourg for a preliminary ruling. This is a point worth being precise about, because it is routinely reported loosely.
The Court of Justice does not review the Italian fine. It answers questions of EU law, and the national court then applies those answers to the facts in front of it.
The two questions are narrow and consequential. Does the Article 14 hosting exemption in the e-commerce directive apply to online advertising of games and betting for money at all? And if it does, can Google claim it given the arrangement it had with the creator?
That second question is where the case gets interesting, and the facts are unhelpful for Google. The videos were uploaded by a content creator tied to Google through a commercial partnership agreement that shared the advertising revenue generated by ads running before each video.
The agreement was not blind. Before signing it, Google reviewed the creator’s videos, the theme of the channel, the most viewed and most recent uploads, and the associated metadata.
A company that inspects a channel, decides it likes what it sees, signs a revenue-share deal, and then sells ads against the output is doing something that resembles hosting less with each additional step.
The distinction the case rests on, between a passive host and an active one, has been in EU law for two decades and has never survived contact with the platform economy particularly well.
It was drafted for a world of file storage, not for one where the intermediary curates, monetises, and shares the proceeds.
The stakes are wider than one fine. If the hosting shield does not extend to a platform in a revenue-share relationship with the uploader, then the exemption thins out across exactly the content platforms make money from.
That would land on the online gambling industry first, and on the digital advertising market immediately after.
The case drew a crowd, which is usually the tell. At the hearing, the governments of Italy, Belgium, the Czech Republic, and Portugal all appeared alongside Google, AGCOM, and the European Commission. Four member states do not turn up to argue about €750,000.
The Android ruling is not the only one. A German court has found Google liable for its own AI Overviews, and it has been offering concessions on news-search ranking to head off a further DMA penalty.
What connects them is a direction of travel rather than any single ruling. The question Europe keeps returning to is whether a company that arranges, ranks, and monetises other people’s content can keep describing itself as a neutral conduit for it.
The answers now go back to the Council of State, which decides what they mean for the fine.
