AGCOM vs Google: EU Advocate General’s opinion on the gambling advertising ban
The dispute between AGCOM and Google over gambling-related promotional videos hosted on YouTube has reached a decisive stage before the Court of Justice of the European Union. Advocate General Maciej Szpunar, in his conclusions in case C-421/24, outlines an interpretative direction that could reshape the boundaries of platform liability in the digital sphere.
The case stems from a €750,000 fine issued in 2022 by the Italian Communications Authority (AGCOM) against Google Ireland for hosting more than six hundred videos linked to the creator “Spike”, deemed to be unlawful gambling advertising under Italy’s “Decreto Dignità”. The Council of State, tasked with ruling on Google’s appeal, referred two key questions to the EU Court: whether the EU e-commerce directive applies to content related to gambling, and whether a platform such as YouTube can claim liability exemption as a hosting provider even when it has commercial partnerships with creators.
The e-commerce directive also applies to gambling-related content
According to the Advocate General, Directive 2000/31/EC remains applicable even when the content concerns gambling. The directive’s exclusion in this sector refers strictly to the provision of gambling services, not to the hosting or storage of third-party content.
In practical terms, the nature of the content – even if it involves games with cash prizes – does not alter the classification of the platform as a hosting service provider. Storing promotional videos uploaded by users, therefore, remains within the scope of the directive, meaning that the liability exemption established by Article 14 continues to apply.
This interpretation is especially significant as it draws a clear line between national rules regulating gambling and the European framework governing digital intermediaries.
The platform’s role and the threshold of “passivity”
The core issue addressed in the opinion concerns platform liability. Advocate General Szpunar reiterates that YouTube can benefit from the hosting exemption only if it remains in a passive position – that is, without playing any active role in shaping, selecting, or influencing user-generated content. The exemption is lost when a provider:
- participates in the selection or modification of content;
- optimises distribution in a targeted manner;
- exercises editorial influence or contributes to creation.
The Advocate General also makes clear that joining the YouTube Partner Program does not automatically turn the platform into an “active” intermediary. Revenue-sharing mechanisms and extra features for creators do not, on their own, amount to substantial control over uploaded videos.
However, one limit remains absolute: the platform loses the safe harbour if it can be shown that it had actual knowledge of the unlawful nature of the content and failed to act promptly to remove it. It will therefore fall to the national court to determine whether YouTube’s moderation systems and internal checks should have made the presence of prohibited advertising obvious.
Implications for digital platforms and the iGaming sector
The Advocate General’s conclusions have potentially far-reaching consequences across the wider ecosystem of user-generated content. Should the Court of Justice endorse this interpretation, digital platforms will have to demonstrate – continuously and convincingly – that they remain neutral in relation to hosted material, avoiding conduct that could be considered an active contribution.
For the iGaming industry and national regulators, the opinion marks a pivotal moment. While the Italian ban on gambling advertising remains fully valid, the Court’s reasoning could restrict the circumstances in which platforms can be held liable, limiting enforcement to cases where knowledge of the illegality can be proven. This may require regulators to rethink their tools and enforcement strategies, particularly when promotional content is disseminated by independent creators.
The Court’s eventual ruling will therefore play a decisive role in shaping the balance between consumer protection, freedom of expression, intermediary liability and national gambling regulations.
Looking ahead to the Court of Justice ruling
The next move now lies with the Court of Justice of the European Union, which is expected to issue its decision in the coming months. Its ruling will not only determine whether YouTube was entitled to a liability exemption in this specific case, but will also clarify the future legal framework applicable to platforms hosting sensitive or regulated content.
The AGCOM–Google dispute has become a test case for the EU’s entire approach to intermediary liability. The decision from Luxembourg is likely to influence how digital platforms operate, how national authorities enforce advertising bans, and how the iGaming industry approaches online visibility and content distribution.
This article was first published in Italian on 28 November 2025.
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