I. Introduction
On Thursday, July 16, 2026, the Court of Justice of the European Union (CJEU) once again ruled on the liability exemption for hosting providers under Article 14 of the Directive 2000/31/EC (E-Commerce Directive). According to the ruling, platform operators cannot hide behind a purported hosting activity if they enter a revenue-sharing partnership and, in that connection, examine the essential content of the channel. The Court further held that the hosting of gambling advertising is not inseparably connected with gambling activities as such and is therefore not covered by the sectoral exclusion in Article 1(5)(d) of the E-Commerce Directive. The judgment sheds light on the—increasingly narrow—limits the Court draws around the concept of hosting. The provisions on liability of intermediary service providers, namely Articles 12 to 15 of the E-Commerce Directive, have been replaced by the Digital Services Act (Regulation (EU) 2022/2065); see Article 89 DSA. The significance of the Court’s decision should nevertheless not be underestimated, since it creates a tension that the DSA was meant to resolve. The more carefully a provider examines the content it monetizes, the sooner it forfeits the exemption.
This blog post first discusses the background of the case (II.) and the judgment of the Court (III.). It then turns to the applicability of the decision to, and its significance for, the DSA (IV.).
II. Background of the Case
The Italian communications regulator, AGCOM, imposed a fine of €750,000 on Google and ordered the removal of 630 videos for violating the ban on gambling advertising. Content creators on five channels advertised gambling on Google’s video platform YouTube and invited their viewers to submit videos of their top winnings, which the creators then published in return for a payment to the user. In addition, Google had entered into a so-called commercial partnership agreement with the content creators. This agreement provides, first, for a sharing of the revenue generated by the advertising shown before each of that content creator’s videos and collected by Google. Second, Google directly receives the payments from subscribers to the content creator’s channels and then makes payments to the creator. To enter into this commercial partnership agreement, the content creator in question must meet certain conditions established by Google. In particular, the creator must reach certain thresholds regarding the number of subscribers and the watch time of their videos. Furthermore, before concluding such a commercial partnership agreement with a content creator on the YouTube platform, Google also reviews the content of the videos by examining the channel’s theme, the most viewed or newest videos, and the video metadata (titles, descriptions, etc.). This review does not, however, amount to a complete review of all of the channel’s videos.
Two decisive legal questions emerged from this, which the Italian Council of State, the Consiglio di Stato, referred to the Court for a preliminary ruling. Google claims it is a neutral hosting provider and is therefore covered by the liability exemption in Article 14 of the E-Commerce Directive. Consequently, Google cannot be held liable for the content. This first raises the question of the scope of the E-Commerce Directive, which is transposed by the Italian rules and, in Article 1(5)(d) of the E-Commerce Directive, provides for a sectoral exclusion for gambling activities. If that exclusion also covers the advertising of gambling, the directive’s liability exemption does not apply in the first place. As a follow-up, the referring court then asks whether Google is in fact covered by the liability exemption of Article 14 of the E-Commerce Directive.
III. Judgment of the Court
1. Scope of the E-Commerce Directive
The threshold question is whether the exclusion in the third indent of Article 1(5)(d) of the E-Commerce Directive applies. Because the Court reads the concept of gambling broadly, covering also ancillary activities intrinsically bound up with it, the exclusion has a correspondingly wide reach. The reason lies chiefly in the absence of any EU-wide consensus on how gambling should be treated, a point the Court tirelessly repeats by reference to the “considerable moral, religious and cultural differences between the Member States.” It is therefore for the Member States to regulate gambling, and they must be able to reach all activities linked to it, advertising included.
The Court does not, however, infer from this that the hosting of gambling advertising is likewise covered by the exclusion. There is no inseparable link between hosting and gambling. Taken on its own, hosting is an activity that applies without distinction to every type of advertising and, more generally, to the provision of content of every kind. The regulation of gambling does not require that the hosting of online content be brought within the exclusion. Article 1(5)(d) of the E-Commerce Directive accordingly does not apply. Even where the hosted videos contain gambling advertising, the online hosting of videos remains an information society service that falls within the scope of the E-Commerce Directive.
2. The Liability Exemption
The second question the Court addressed was whether Google can in fact rely on the liability exemption of Article 14 of the E-Commerce Directive. Under the Court’s case law, the exemption applies only where it is ensured that the intermediary has neither knowledge of nor control over the content. The intermediary’s activity as a provider of information society services must be confined to the technical process of operating a communication network and giving access to it. This presupposes that the activity is of a merely technical, automatic, and passive nature. The two criteria (knowledge and control) are to be understood as alternative to and independent of each other.
On control, an operator falls outside Article 14(1) of the E-Commerce Directive where it controls the stored information even without ever becoming aware of it, given automated processing. Control can lie in the algorithm itself. Where the operator has predetermined the conditions under which, how, and in what order content is broadcast in its own interest, the exemption is lost. Mere categorization and indexation to improve accessibility remain permissible.
On knowledge, incidental awareness of illegal content or third-party notification does not disqualify the operator, nor do voluntary detection measures. But comprehensive knowledge of all content is not required either. It suffices that the operator knows the essential content uploaded by a user, for example assistance in optimizing or promoting advertisements is disqualifying.
This threshold is also met where an online video platform, with a view to concluding a revenue-sharing agreement, examines a channel’s main theme, its most viewed or newest videos, or their metadata. It does not matter whether that examination is automated or carried out by natural persons, nor that its purpose is merely to verify compliance with the platform’s own partnership rules. The examination gives the operator specific knowledge of the essential content of a set of videos, precluding any claim to a purely technical, automatic, and passive intermediary role.
Applying this to the facts, the Court noted that Google’s review under the commercial partnership agreement goes beyond the standard checks applied without distinction to all uploads. It covers the channel’s main theme, its most viewed or newest videos, and their metadata, and extends to the originality and quality of the content, with revenue sharing conditional on meeting those content-related requirements. In those circumstances, and subject to verification by the referring court, Google could not reasonably have been unaware that the channel’s main theme was gambling and that they contained videos advertising it. Thus, Google will not be able to rely on the liability exemption of Article 14 of the E-Commerce Directive.
IV. Implications of the Judgment and Broader Lessons for EU Digital Regulation
The judgment was rendered under the E-Commerce Directive of 2000, whose liability provisions have since been largely superseded by the Digital Services Act. This raises the follow-on question of whether the standards developed by the Court continue to apply under the DSA. The Court itself had no grounds to rule on the DSA, since the relevant facts predate the DSA’s applicability. The liability exemption for hosting has been carried over into Article 6 DSA in nearly identical wording to the former Article 14 of the E-Commerce Directive, and Article 89(2) DSA provides that references to the repealed Articles 12 to 15 of the E-Commerce Directive shall be construed as references to Articles 4, 5, 6 and 8 DSA. Everything therefore points toward a parallel interpretation. Above all, Recital 18 DSA retains the neutrality criterion by denying the exemption where the provider plays an active role of such a kind as to give it knowledge of, or control over, the content. The case law developed on this criterion, on which the judgment under review also relies, thus remains applicable. It remains to be seen how the Court of Justice will apply these rules. In the pending appeal in Case C-724/25 P, Zalando v Commission, Zalando, inter alia, challenges an earlier decision of the Seventh Chamber, failing to recognize the transferability of that case law. The Court’s ruling on the appeal will likely shed light on this issue, although numerous further proceedings are to be expected.
Moreover, the case law handed down by the Court of Justice in recent years on the neutrality criterion under the E-Commerce Directive has not gone without criticism. That criticism extends to the present case as well. A potentially paradoxical situation arises for hosting providers. If they review the content made available on their platforms in order to protect themselves, they end up worse off than if they had refrained from any review at all. Under the Court’s reading, the mere substantive screening of the channel’s theme, the most viewed videos, and the metadata already confers the knowledge that triggers liability, whereas a provider that does not look at all remains neutral. The liability risk thus grows with the degree of diligence exercised. Taken to its logical conclusion, the platform would be well advised to tie its partner programs solely to quantitative thresholds such as subscriber or view counts and to forgo any qualitative content review. It would thereby retain the exemption even though it shares in the advertising revenue. The incentive accordingly points toward willful blindness.
That such an outcome is questionable as a matter of legal policy becomes apparent when viewed in conjunction with the DSA. Unlike the E-Commerce Directive, the DSA contains in Article 7 the so-called Good Samaritan clause, which protects providers that carry out voluntary own-initiative investigations in good faith from losing the exemption on that ground alone. Recital 26 DSA also expressly identifies as its purpose the removal of a disincentive to such measures. The legislature thus seeks to encourage reviews, while the neutrality doctrine confirmed here effectively penalizes them.
The judgment therefore highlights a fundamental tension in the regulation of online platforms. A regime that seeks to hold platforms accountable for the content they facilitate may, if applied too rigidly, discourage precisely the forms of oversight that the DSA seeks to promote. The challenge is to design a framework in which platforms can be expected to exercise meaningful oversight without making such diligence itself a source of liability. The DSA’s Good Samaritan clause points in that direction, but the present judgment shows that the relationship between the two approaches remains unresolved. Needless to say, the justification of the liability privilege remains contested and is being questioned beyond the borders of Europe as well.
