CJEU clarifies scope of the E-Commerce Directive
The Gerichtshof der Europäischen Union (EuGH, Court of Justice of the European Union) ruled in its judgment of 16 July 2026 in Case C-421/24 on the interpretation of Art. 1(5) and Art. 14 of Directive 2000/31/EC on electronic commerce. The subject of the preliminary ruling proceedings was the question of whether a hosting service for online videos falls within the Directive where those videos contain advertising for gambling involving monetary stakes, and under what conditions the operator of a video platform may rely on the liability privilege for hosting services.
The starting point was proceedings between the Italian communications regulator AGCOM and Google Ireland Ltd. The authority had imposed a fine due to advertising and promotion of gambling sites on YouTube. The CJEU made clear that the activity of online hosting of videos may, in principle, fall within the scope of Directive 2000/31/EC, even if the hosted videos contain gambling advertising. At the same time, the Court rejected the application of Art. 14 of the Directive to a platform operator that had entered into a commercial partnership with a channel operator for the sharing of advertising revenue and, in that connection, had reviewed certain content of the channel.
Main proceedings in Italy
Sanction imposed by the Italian supervisory authority
On 19 July 2022, the Italian authority AGCOM imposed a fine of EUR 750,000 on Google Ireland Ltd. The basis was Art. 9 of Italian Decree-Law No. 87/2018, the so-called “Decreto Dignità”. This provision prohibits any form of direct or indirect advertising for games or bets involving monetary stakes as well as gambling, irrespective of the channel through which the advertising is disseminated.
Under the provision, an administrative fine amounting to 20 percent of the sponsorship or advertising value may be imposed in the event of an infringement, but at least EUR 50,000 per infringement. The authority objected to advertising for gambling offers in videos that had been published on five YouTube channels. According to the findings in the main proceedings, the decision also included an order to remove numerous videos and equivalent content.
According to the additionally published information, the proceedings arose from AGCOM-Delibera 275/22/CONS of 19 July 2022. Gambling advertisements in 630 videos on five YouTube channels were challenged. Further reports refer to an order to remove 625 unlawful items of content on YouTube and on a related website within seven days, as well as to a prohibition on uploading equivalent videos in the future. However, the facts as presented by the referring court were decisive for the legal assessment by the CJEU.
Content concerned and YouTube Partner Program
According to the information in the proceedings, the videos at issue originated from content creators who had published content on several channels. In the videos, users, irrespective of their age, were invited to submit their own videos showing winnings achieved. The content with the highest winnings was then to be disseminated; payment to the respective user was provided for this purpose.
The content creator concerned participated in the YouTube Partner Program, i.e. a commercial partnership programme for the monetisation of content. The partnership agreement provided in particular that revenue from advertising shown before the videos would be shared between the platform operator and the content creator. In addition, Google received payments directly from subscribers to the channels and forwarded amounts to the content creator.
Certain conditions had to be met in connection with this partnership. These included thresholds relating to the number of subscribers and watch hours. According to the findings of the referring court, before entering into such a partnership Google reviewed, among other things:
- the main theme of the channel,
- the most viewed videos,
- the most recent videos,
- metadata such as titles and descriptions,
- as well as further aspects relating to the originality and quality of the content.
According to the referring court, this review did not constitute a complete check of all videos on the channel.
Course of proceedings before the Italian courts
Google challenged AGCOM’s decision before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court for Lazio). That court took the view that Google had not infringed Art. 9 of Decree-Law No. 87/2018. It classified the services provided via YouTube as hosting services and assumed that Google could benefit from the exemption from liability under the Italian provisions transposing Art. 14 of Directive 2000/31/EC.
AGCOM appealed against that decision to the Consiglio di Stato (Italian Council of State). It stayed the proceedings and referred the matter to the CJEU by way of a preliminary ruling procedure. According to published information, the appeal proceedings before the Consiglio di Stato remained pending; a hearing took place before its Sixth Section on 9 July 2026.
The CJEU did not make a final decision on the national sanction. The binding assessment of the dispute in the main proceedings remains reserved to the Italian court. In particular, that court must apply the CJEU’s findings to the specific facts.
First question referred: scope of Directive 2000/31/EC
Gambling itself and gambling advertising
By its first question, the Consiglio di Stato sought to ascertain whether the liability regime for hosting services under Art. 14 of Directive 2000/31/EC applies to activities connected with online advertising for games or bets involving cash winnings and advertising for gambling.
Art. 1(5)(d), third indent, of Directive 2000/31/EC excludes certain gambling activities from the scope of the Directive. It covers gambling activities which involve wagering a stake with monetary value in games of chance, including lotteries and betting. The CJEU emphasised that this exception must be understood broadly. It covers not only gambling itself, but also activities that are inseparably linked to that gambling, including online advertising for such gambling.
In its reasoning, the Court referred to the fact that the regulation of gambling belongs to areas in which there are considerable moral, religious and cultural differences between the Member States. In the absence of EU-wide harmonisation, the Member States may determine, in accordance with their own scale of values, what requirements are necessary to protect the interests concerned. They must therefore also be able to regulate activities inseparably linked to the gambling sector, including advertising for gambling.
Hosting such advertising remains covered in principle
However, the CJEU distinguished between the activity of gambling advertising and the hosting of content containing such advertising. Online hosting consists, in principle, of the storage of content provided by a user. By its nature, this activity is not directly aimed at gambling and does not differ according to the type of content stored.
Accordingly, an information society service consisting of the online hosting of videos falls, according to the CJEU’s decision, in principle within the scope of Directive 2000/31/EC, even if those videos contain advertising for gambling involving monetary stakes. The hosting of such advertising is not excluded from the Directive solely because the advertising itself concerns the gambling sector.
The CJEU thus answered the first question referred to the effect that Art. 1(5)(d), third indent, of Directive 2000/31/EC does not preclude the Directive from applying to the online hosting of videos, even if those videos contain gambling advertising within the meaning of that provision.
Second question referred: conditions of the liability privilege
Art. 14 of Directive 2000/31/EC
The second question referred concerned the scope of Art. 14 of Directive 2000/31/EC. This provision concerns hosting services. Under it, the Member States ensure that a service provider is not liable for information stored at the request of a user, provided certain conditions are met.
The privilege requires, in particular, that the provider has no actual knowledge of unlawful activity or information. As regards claims for damages, the provider must also not be aware of facts or circumstances from which the unlawful activity or information is apparent. If the provider obtains such knowledge or awareness, it must act expeditiously to remove the information or to disable access to it.
Art. 14(2) of the Directive excludes the application of the rule where the user acts under the authority or control of the provider. Art. 14(3) also leaves unaffected the possibility for courts or administrative authorities, in accordance with national law, to order measures to terminate or prevent an infringement.
Neutral role as a prerequisite
The CJEU built on its previous case law on intermediary services. The liability exemptions under the Directive concern only activities of a technical, automatic and passive nature. The provider must have neither knowledge of nor control over the information stored.
For Art. 14 to apply, it must therefore be examined whether the operator of an online video platform assumes a neutral role. A neutral role exists where its conduct is purely technical, automatic and passive in nature. By contrast, the privilege is excluded where the operator plays an active role giving it knowledge of, or control over, the stored content.
The Court made clear in this regard that knowledge and control are alternative and independent considerations. It is therefore sufficient for one of these considerations to be present in order to call the neutral position into question.
Review of channel content and advertising revenue
No complete knowledge of all content required
The CJEU further clarified that a platform operator does not fall outside Art. 14 of the Directive only when it has comprehensive knowledge of all content uploaded to the platform. It is sufficient if its activity leads it to know the essential content of a group of videos.
By contrast, the mere fact that a platform operator happens to become aware, by chance or incidentally, of individual unlawful items of content is not sufficient. Nor does a notice from a third party concerning unlawful content automatically exclude the application of Art. 14. It is precisely for such cases that Art. 14 provides that, after obtaining knowledge, the provider may act expeditiously in order to retain the exemption from liability.
Similarly, the mere use of technical measures to detect potentially unlawful content does not, according to the case law, automatically result in the provider assuming an active role. The decisive factor remains the specific design of the activity and the extent of knowledge or control.
Effects of the commercial partnership
In the present case, the CJEU highlighted the particular features of the commercial partnership. Google had entered into an agreement with the content creator on the sharing of advertising revenue. In connection with the conclusion or performance of that agreement, essential content of the channel was reviewed, including the main theme, most viewed or most recent videos and the metadata.
According to the decision, such a review gives the platform operator specific knowledge of the essential content of a group of videos. In that case, it can no longer claim to be carrying out a merely technical, automatic and passive activity as a neutral intermediary.
The CJEU stated that it is not decisive in this respect whether the review is carried out automatically or by natural persons. What matters is that, in the course of the review, the operator obtains knowledge of the essential content of the group of videos examined. According to the findings of the referring court, the review served, among other things, to assess whether the content creator met the platform rules for access to the partnership programme.
CJEU decision on Art. 14 of the Directive
The CJEU answered the second question referred to the effect that Art. 14 of Directive 2000/31/EC does not apply to the operator of an online video platform that has entered into a commercial partnership with a user concerning the publication of videos on a specific channel and the sharing of advertising revenue, where the operator has reviewed the content of that channel in connection with the conclusion or performance of that agreement.
According to the decision, this applies in particular where the review relates to the main theme of the channel, the most viewed or most recent videos, or the metadata of those videos. In such circumstances, the operator cannot argue that it acted merely as a neutral intermediary service.
For the main proceedings, the CJEU found that, according to the information provided by the referring court, when reviewing the YouTube channels concerned, Google could reasonably not have been unaware that their main theme was gambling and games of chance and that they contained a number of videos with advertising for such games. This finding is subject to verification by the referring court.
Significance for platforms and advertising environments
The judgment highlights the distinction between the scope of the E-Commerce Directive and the specific liability privilege under Art. 14 of Directive 2000/31/EC. Even if the hosting of videos with gambling advertising may in principle fall within the Directive, it does not automatically follow that the operator benefits from the exemption from liability in every case.
The assessment depends essentially on the role assumed by the platform operator in relation to the hosted content. Mere technical storage differs from situations in which the operator enters into a commercial agreement with the content creator and, in that connection, reviews central content of the channel.
According to the judgment, the following factors, among others, are of particular relevance:
- existence of an agreement on the sharing of advertising revenue,
- review of the main theme of a channel,
- viewing of the most viewed or most recent videos,
- analysis of metadata such as titles and descriptions,
- review in connection with access requirements for a monetisation programme.
The CJEU has therefore not decided that every platform operator is responsible for every unlawful gambling advertisement on its platform. The decision concerns a specific factual scenario in which a commercial partnership was linked to a substantive review of certain channel components.
Further procedural status and national review
The CJEU’s decision was issued in the context of a preliminary ruling procedure. The main proceedings remain a matter for the Consiglio di Stato. The decision on costs for the parties to the national proceedings is likewise for the referring court.
According to the published information, the national court must now examine whether the videos on the channels concerned predominantly contained direct or indirect gambling advertising and whether Google had knowledge of this. Insofar as the national proceedings have not yet been finally decided, administrative and judicial findings must be assessed in accordance with the respective stage of the proceedings. A final decision on the lawfulness of the specific sanction remains reserved to the competent national court.
The judgment was published in the Official Journal of the European Union on 21 September 2026. It was also transmitted to the committees of the Camera and Senato in Italy as a Union document and is the subject of parliamentary consideration there.
Assessment by MTR Legal Rechtsanwälte
The judgment concerns key issues of platform responsibility, the monetisation of digital content, and the distinction between neutral hosting and active participation in the dissemination of content. For companies, platform operators, advertisers and rights holders, the decision may be significant where business models are based on user-generated content, advertising revenue and content review processes.
MTR Legal Rechtsanwälte advises clients on matters of IT law, in particular in relation to digital business models, platform structures, liability issues and the legal assessment of online advertising. If you have legal questions regarding the effects of the decision and the classification of platform-related responsibility, you can find further information at Legal advice in IT law.
