Google before the EU Court of Justice: the AGCOM case and gambling advertising
On 10 September, at the Court of Justice of the European Union, a long-awaited hearing took place in the case opposing Google to AGCOM, Italy’s Communications Authority. At the centre of the dispute lies a €2.2 million fine imposed on Google Ireland Limited for allegedly breaching the ban on online gambling advertising set out under Article 9 of the so-called “Decreto Dignità” (Law Decree 87/2018). This Italian law, among the strictest in Europe, prohibits all forms of direct or indirect promotion of games with cash prizes, whether via traditional media such as radio and television, or on digital platforms and social networks.
The case, which originated in Italy and was referred to Luxembourg by the Italian Council of State, touches on a legal issue of European scope: to what extent can global tech companies invoke the limited liability regime provided by the e-Commerce Directive when it comes to advertising content expressly banned by national law.
AGCOM’s stance and the contested fine
According to AGCOM, Google cannot be considered a neutral intermediary but instead plays an active role in the management and dissemination of content hosted on YouTube. The Authority found that a number of videos, often disguised as tutorials or entertainment, in fact contained promotional messages related to betting and gambling. Furthermore, these contents were monetised through the YouTube Partner Program, with revenue sharing between Google and the video creators.
In AGCOM’s view, this arrangement moves Google outside the protective framework of Article 14 of Directive 2000/31/EC. The Authority argued that the repeated nature of such conduct amounted to an organisational model whereby the platform profits from the dissemination of unlawful advertising. Hence, the fine, whose amount and significance make it a landmark penalty in the European context.
The judicial path in Italy and referral to the European level
Google challenged the fine before the Lazio Regional Administrative Court (TAR), which referred the matter to the Council of State. On 23 May 2024, the Council suspended the proceedings and submitted two questions to the Court of Justice of the European Union. The judges in Luxembourg are now asked to clarify whether the liability exemption for hosting providers applies to gambling-related advertising, and whether Google, in view of its partnership contracts with content creators, should be classified as an “active” hosting provider and thus fully liable.
These are not merely technicalities but issues that reach beyond Italy’s borders, striking at the very heart of European digital services law and the delicate balance between business freedom and consumer protection.
A case with a European dimension
The hearing brought together not only Google and AGCOM but also representatives of the governments of Italy, Belgium, the Czech Republic and Portugal, alongside the European Commission. Such participation highlights the strategic relevance of the dispute, which could reshape the regulatory equilibrium of the European digital market as a whole.
The central issue is whether the limited liability regime for hosting providers should be curtailed in sensitive sectors such as gambling. The implications extend far beyond Google: a restrictive ruling could force major platforms to tighten their content monitoring systems, with direct consequences for the online gambling industry, the digital advertising market, and the broader media ecosystem.
Passive or active hosting provider?
The distinction between passive and active hosting providers is the cornerstone of the case. If a provider merely hosts content without exerting control, the e-Commerce Directive shields it from liability for any unlawful material. However, if – as AGCOM contends – the intermediary plays an active role in managing, promoting, or monetising content, then it forfeits such protection.
The Italian Council of State stressed that Google, through partnership contracts and monetisation policies, may fall within the latter category. The EU Court of Justice is thus called to resolve a definitional issue that will have immediate repercussions on the operational strategies of digital platforms.
The potential consequences of an unfavourable ruling for Google
The forthcoming judgment, to be preceded by the Advocate General’s opinion, is expected to set an important precedent. Should the Court endorse the Council of State’s interpretation, online platforms would face heightened responsibility for unlawful advertising disseminated through their services. For Google, this would imply a radical shift in the way content is managed on YouTube, but more broadly, the entire tech sector could be forced to revisit business models built on revenue sharing with creators.
Regulatory consequences would also follow: Italy’s strict approach under the Decreto Dignità could gain validation as a reference model, while other EU member states might be encouraged to adopt a stricter stance on gambling advertising.
A landmark case in the making
The proceedings before the EU Court of Justice are far more than a dispute between Google and AGCOM. They represent a crucial step in the evolution of European digital law. At stake is the balance between platform responsibility and entrepreneurial freedom, between consumer protection and technological innovation.
The ruling, expected in the coming months, will establish a principle of law that is likely to resonate well beyond Italy and the European Union. For the online gambling market and digital platforms, this is a watershed moment, with consequences destined to shape the future of content regulation across Europe.
This article was first published in Italian on 16 September 2025.
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