Limitation of Liability
no longer applies for
YouTube.
Limitation of Liability
no longer applies for
YouTube.
of
Do platforms like YouTube lose their liability exemption as soon as they select content creators for an affiliate program and review their channels for that purpose? Is reviewing the channel’s topic, most-viewed videos, and metadata sufficient to establish that the platform operator is playing an active role?
What is it all about?
On July 19, 2022, the Italian media regulatory authority AGCOM imposed a fine of 750,000 euros on Google Ireland Ltd. The reason was a violation of the Italian ban on advertising contests involving cash prizes, which has been in effect since July 12, 2018. A content creator had posted videos on five YouTube channels promoting contest websites. In the videos, users—regardless of their age—were encouraged to document their own winnings so that the content creator could publish videos featuring the highest winnings in exchange for compensation. In addition to the fine, AGCOM ordered the removal of 630 videos.
Google challenged the decision in court and was initially successful. The competent administrative court viewed YouTube as a pure hosting service, for whose content Google is generally not liable. AGCOM filed an appeal. The Italian Council of State, as the highest administrative court, subsequently referred the case to the European Court of Justice.
Judgment of the ECJ
Essentially, the Google Ireland case before the ECJ (Judgment of July 16, 2026 – Case No. C-421/24 ) a rule that protects many platforms: Anyone who merely stores third-party content without monitoring it is generally not liable for it. This applies to YouTube as well as to other platforms where users upload their own content. However, this so-called “hosting privilege” applies only as long as the platform plays a purely technical, passive role and has neither knowledge of nor control over the stored content.
First, the Court had to determine whether this protective rule applies at all to advertisements for sweepstakes, since sweepstakes themselves are exempt from certain EU rules. The Court ruled that the mere storage of videos containing advertisements for sweepstakes is not affected by this. A platform treats all stored content equally, regardless of what is being advertised. The hosting privilege therefore remains applicable in principle.
The second question was the key one, and this is where things get particularly interesting for companies with influencer partnerships. Through the YouTube Partner Program, Google operates a system in which content creators receive a share of advertising revenue once they reach certain subscriber counts and watch time thresholds. Before Google accepts a channel into this program, the company reviews the channel’s main topic, its most-viewed and most recent videos, and the video descriptions.
It was precisely this review that proved to be Google’s undoing. The Court ruled that such a review of content prior to the platform’s share of revenue provides concrete knowledge of the essential content of the entire channel. However, anyone who has knowledge of the content can no longer claim to have played a purely technical, passive role and thus loses the protection afforded by the hosting privilege.
When reviewing the YouTube channels at issue in the main proceedings, Google could not reasonably have been unaware that their main focus was on contests and games of chance and that, in violation of Art. 9 of Decree-Law No. 87/2018, contained numerous videos promoting such games.
Based on this finding, the Court concluded that Google could not invoke the hosting privilege with respect to the channels in question. The review conducted as part of the partner program was sufficient to establish that Google had knowledge of the content and was therefore liable.
Unanswered Questions
The rule interpreted here stems from an older EU directive from 2000. Since February 2024, online platforms have also been subject to the Digital Services Act (DSA), a more recent EU law that contains a very similar provision regarding the hosting privilege. The Court of Justice did not rule on whether the standards developed here are directly applicable to the scope of the DSA, because the present case had to be assessed under the old law. There are many indications, however, that the same principles apply, though this is not certain.
It also remains unclear exactly where the line is drawn. The Court of Justice placed decisive emphasis on the fact that Google reviewed the entire channel and not just individual videos. The ruling leaves open the question of how to assess a situation in which a platform for an affiliate program evaluates only automatically generated metrics without anyone actually viewing the content.
Another striking aspect is the contradiction created by the ruling. Platforms that carefully vet the parties with whom they enter into business partnerships now run the risk of being held liable precisely because of that diligence. Those who, on the other hand, conduct as little vetting as possible are more likely to remain protected by the principle of neutrality. It is doubtful whether such an incentive to act carelessly is actually intended.
Conclusion
The ruling shows how quickly reviewing channel content can lead to liability. It was not the technical aspects of the review that were decisive for the court, but rather the economic context: Those who scrutinize content closely before sharing in the revenue know more, and those who know more are more likely to be held liable. In doing so, the court places greater emphasis on the business purpose of a review than on its technical details.
It remains to be seen whether this approach can be applied unchanged to the legal situation under the Digital Services Act and how platforms should handle the tension between carefully selecting partners and maintaining their liability protection in the future.
We are happy to
advise you about
IT law!
