YouTube hosting safe harbour removed where review resulted in knowledge of user content

Legal rules

The EU hosting safe harbour, originally set out in Article 14 of the Directive and now reflected in Article 6 of the Digital Services Act, ^[5] limits the liability of a hosting provider for unlawful information stored at a user’s request, as long as its role remains sufficiently neutral. In broad terms, a host is not liable for stored information where it has no actual knowledge of illegal activity or information and, in relation to damages claims, is not aware of facts or circumstances from which the illegality is apparent. Once it obtains the relevant knowledge or awareness, it must act expeditiously to remove the information or disable access to it.

Article 9 of Italian Decree-Law No. 87/2018 prohibits direct and indirect advertising relating to games, betting with monetary stakes and gambling, irrespective of the medium used. The prohibition extends to digital and electronic communications, including social media. Infringement may attract an administrative fine equal to 20% of the value of the sponsorship or advertising, subject to a minimum of €50,000 for each infringement.

Procedural history

In July 2022, the Autorità per le Garanzie nelle Comunicazioni (AGCOM), the Italian communications regulatory authority, found that Google had permitted gambling websites to be promoted through videos posted by content creators on five YouTube channels. The channels invited users, regardless of age, to submit videos showing their winnings, with payments offered to users whose winnings were selected for broadcast. AGCOM fined Google €750,000 and ordered it to remove 630 videos, together with similar infringing content.

Google successfully challenged that decision before the Regional Administrative Court for Lazio. The court classified YouTube’s services as hosting services and held that Google should benefit from the Italian provisions transposing Article 14 of the Directive.

AGCOM appealed to the Italian Consiglio di Stato, the Council of State. It argued that the Directive did not apply, as Article 1(5) excluded gambling activities from its scope. Google responded that the exclusion concerned gambling service providers, not hosting providers, and that it was not required, as a hosting provider, to verify videos uploaded to YouTube.

The Council of State also questioned whether Google could claim a purely technical and neutral role where it had entered into commercial partnerships with creators through the YouTube Partner Programme. Those arrangements provided for sharing of advertising revenue and the collection and redistribution of subscriber payments. Notably, before admitting a creator to the programme, Google examined various matters, including the channel’s theme, its most viewed or newest videos, and video metadata.

Questions for the CJEU

The Council of State stayed the proceedings and referred two questions to the CJEU:

1. Under Article 1(5) of the Directive, does the liability regime for hosting providers under Article 14 of the Directive apply to activities relating to the online advertising of games or betting with monetary winnings and to the advertising of gambling?
2. Does the liability regime under Article 14 of the Directive apply to a hosting provider such as Google in relation to content published by the owners of YouTube channels with whom Google has concluded such a commercial partnership?

Decision

Gambling exclusion

On the first question, the CJEU held that the exclusion for “gambling activities” in Article 1(5)(d) must be interpreted broadly. It covers gambling itself and activities intrinsically linked to gambling, including online gambling advertising. Yet it does not extend to the distinct activity of hosting that advertising. Hosting consists, in principle, of storing information supplied by a user and is neutral as to the nature of the content. So, an online video-hosting service remains within the scope of the E-Commerce Directive, even where the hosted videos contain gambling advertising.

Platform liability

On the second question, the CJEU reiterated that Article 14 only protects an intermediary whose conduct is technical, automatic and passive, such that it does not have knowledge of or control over the stored information. Knowledge and control are alternative and independent conditions, and so either may be sufficient to take the platform outside the protection of the safe harbour. A platform may lose the protection where its activities give it knowledge of the essential content uploaded by a user, even if it does not review every item of content.

The CJEU considered that examining a channel’s main theme, its most viewed or newest videos, or video metadata for the purpose of concluding or performing a revenue-sharing agreement gives the platform specific knowledge of the essential content of that set of videos. Subject to verification by the referring court, Google could not reasonably have been unaware that the channels’ main theme was gambling, and that they contained videos advertising games of chance. So, Article 14 did not apply in the circumstances described by the referring court.

The rationale was that Article 14 is reserved for providers whose role is limited to the mere technical, automatic and passive storage of third-party information. Where a platform examines a channel’s theme, selected videos and metadata for monetisation purposes, it is no longer dealing with content only in an abstract or incidental way. Even without reviewing every upload, that process may give the platform a sufficiently concrete understanding of the channel’s essential content to undermine the neutral intermediary character on which the safe harbour depends.

So, the CJEU concluded that: “Article 14 of Directive 2000/31 must be interpreted as meaning that it does not apply to an operator of an online video platform which concluded, with a person using that platform to broadcast videos on a dedicated channel, a commercial partnership agreement providing for a sharing of advertising revenue and which, in connection with the conclusion or performance of that agreement, carried out an examination of the content of that channel and, inter alia, its main theme, the most viewed videos or the newest videos, or the metadata of those videos.”

Comment

The judgment reinforces the distinction between genuinely neutral hosting and a platform’s active involvement with user content. A commercial partnership alone is not framed as an automatic bar to safe-harbour protection, and the judgment should not be read as saying that sharing of revenue, in itself, removes the safe harbour. The critical feature was the content examination undertaken in connection with that partnership, which gave Google specific knowledge of the channels’ essential content, including the fact that their main theme was gambling, and that they contained videos advertising games of chance.

The decision is likely to be significant for platforms operating creator monetisation programmes. Reviews undertaken for eligibility, quality, originality or compliance purposes may be relevant to whether the platform has knowledge or control inconsistent with a neutral intermediary role. The analysis will be fact-sensitive, but platforms should not assume that the absence of a complete review of every upload is sufficient to preserve protection, particularly where sample reviews, channel-level reviews or metadata checks reveal the substance and commercial purpose of the content.

Commercially, the judgment creates a compliance tension for platforms. Monetisation programmes commonly require some assessment of creators and content to protect advertisers, to verify originality, to enforce platform rules and to allocate advertising revenue. Yet, the more that those checks involve a substantive review of a channel’s theme, content quality or metadata, the greater the risk that the platform will be treated as having knowledge of the essential content and so stepping outside the neutral host role. Accordingly, platforms may need to revisit how creator onboarding, partner reviews, ad-revenue eligibility checks and escalation processes are documented and structured.

Article written for Entertainment Law Review.