YouTube’s gambling promos land in EU legal hot seat

(CN) — YouTube’s hosting of gambling ads faced fresh scrutiny Thursday, as a top EU legal adviser said the platform can stay protected under EU law only if it keeps a neutral, hands-off role with the content it carries.

In his opinion to the Court of Justice of the European Union, Advocate General Maciej Szpunar said YouTube’s role still falls within the EU’s online-services framework, but only if the platform truly acts as a bystander, hosting user videos without shaping or managing the ads tied to them.

He drew a clear line between a neutral host and a publisher. If YouTube simply provides the space and technical tools for uploads, it keeps its legal shield. But if it starts steering the ads, deciding how they look, where they appear, or how they are promoted, that protection disappears and national regulators can hold the platform responsible.

Italy’s media regulator, AGCOM, set the case in motion after fining Google 750,000 euros (about $869,000) for videos on YouTube that promoted prize-based gaming websites — content it said violated the country’s 2018 ban on gambling and betting promotions.

Google Ireland, which operates YouTube across Europe, pushed back, arguing that under the EU’s “country-of-origin” rule it answers mainly to Irish authorities rather than every national regulator where the platform can be accessed.

Szpunar acknowledged that the rule is designed to keep online services flowing smoothly across borders and prevent each country from building its own digital barriers. But he emphasized that gambling services are excluded from those harmonized rules, leaving member states more room to impose their own restrictions in the public interest.

Even so, he said Italy’s ban couldn’t automatically reach YouTube unless the platform went beyond simple hosting and became directly involved with the disputed ads.

A key point in that debate was YouTube’s Partner Program, which allows creators to earn money from ads attached to their videos. In this setup, ads run alongside user content through YouTube’s monetization tools, and creators take home a share of the revenue.

Italy’s regulator argued that this business model made YouTube an active participant rather than a neutral host because it profited from gambling-related promotions.

Szpunar disagreed, saying there’s no evidence YouTube shaped or selected the gambling content. From what the file showed, the platform was essentially just hosting those videos, not directing the ads themselves.

Szpunar admitted that “the increasing complexity of activities performed by video-sharing platforms, as highlighted by the referring court, makes it extremely difficult to distinguish between activities that influence content and those that do not.”

Still, he said YouTube hadn’t crossed that line. Its internal review system, he noted, only involves checking a small sample of videos already posted on creators’ channels, without editing, approving or taking them down — a sign, he said, that the platform wasn’t steering or shaping the content it carried.

Marco Bassini, assistant professor of fundamental rights and artificial intelligence at Tilburg Law School, said the opinion closely follows the court’s case law on hosting-provider liability under the E-Commerce Directive, which has since been replaced by the Digital Services Act.

“The Advocate General concludes that neither the contractual arrangements in place nor the specific features of the YouTube Partnership Programme necessarily indicate that Google played an active role that would give it control over the content,” he said, noting that “the mere existence of contractual relationships between service providers and content creators, even where the latter disseminate illegal content such as gambling advertising, does not in itself differentiate them from any other user."

Google Ireland and Italy’s communications authority, AGCOM, did not immediately respond to requests for comment.

If the judges follow his lead, YouTube would only be on the hook for ads it directly manages or shapes, not for those uploaded independently by users or advertisers. For national regulators, the takeaway is clear: If they want tougher rules, they’ll need to work through Brussels rather than writing their own.

The Court of Justice will deliver its ruling in the coming months. While the adviser’s views aren’t binding, the judges follow the recommendations more often than not, and this one could redefine how Europe draws the line between platform neutrality and responsibility in the years ahead.

Courthouse News reporter Eunseo Hong is based in the Netherlands.