Google is NOT liable for breach of the Italian gambling advertising ban

The Lazio Court held that Google is not liable for violating the Italian gambling advertising ban relating to games with cash winnings by one of its advertisers.

As mentioned in a previous article, the Italian Communications Authority (AGCOM) issued a fine of € 100,000 against Google Ireland for breach of the Italian gambling advertising ban concerning the Google Ads service for having allowed, through the online advertising placement service, the dissemination, against payment, of links that direct to certain gambling sites, in violation of the ban on advertising of games with cash winnings.

Google’s position against the violation of the Italian gambling advertising ban

Against this sanction, Google appealed to the Lazio Court, arguing that the role of Google Ireland should be qualified, with reference to Google Ads, as a mere “hosting provider“, which, according to the liability regime outlined by the EU eCommerce Directive 2000/31 cannot be called to answer for the content of the information “uploaded” by the advertiser on the web platform made available since it is not even required to verify the content of the ads.

In this context, Google noted that

• even before the entry into force of the Dignity Decree that introduced the ban on advertising of games, in the “Advertising Rules” of Google Ads had, in any case, been introduced the prohibition to publish advertisements of paid games and bets;
• automatic software had been introduced to prevent advertisers from publishing ads in violation of the advertising rules;
• in the present case, the software in question had been circumvented by the advertiser through a fraudulent technique called “cloaking”, which would allow the bypassing of the described security system; and
• the user’s account was immediately suspended and the contested ad removed.

The position of the Lazio Court with respect to the violation alleged against Google

With the decision 11036/2021, the Lazio Regional Administrative Court held the following:

AGCOM can issue sanctions also against foreign subjects

The principle of the “country of origin” provided by the eCommerce Directive under which an information society service provider would be subject only to the legislation and jurisdiction of the authorities of the EU Member State in which it is established does not limit AGCOM’s sanctioning powers in the field of gaming advertising since (i) gambling is expressly excluded from the scope of the Directive and (ii) there is no specific EU legislation on online gambling and related advertising.

Similarly, the sanctioning power of AGCOM against subjects established abroad cannot be considered limited by the position taken by AGCOM on its own nor by the AGCOM Guidelines on advertising of games with cash winnings, since they are only an interpretative circular.

Google is a non-active hosting provider in the Ads service and is therefore not responsible

According to Lazio court, “the mere enhancement” of the illicit message is not sufficient “to found, in the case in point, the responsibility of the platform operator for the violation“.  Google Ads is a hosting service and although it is not possible to affirm the total extraneousness of the manager with respect to the content that it disseminates, “it is undisputed that the activity is automated in nature” and therefore does not involve “the manipulation of messages”. In such circumstances, the “active role” on which the responsibility of the operator is based is therefore lacking”.

In line with European Court of Justice decision 236/2008, the provider cannot be held liable for the data it has stored at the request of an advertiser unless, having become aware of the unlawful nature of such data or the activities of such advertiser, it “failed to promptly remove such data or disable access thereto“.

In the present case, Google Ads in fact provides that:

• ads are created in full autonomy by the advertiser, who determines their content through an automated process;
• through the user’s registration, a special “account” is created with the contextual acceptance of the “Advertising Rules” containing clear information on prohibited or restricted activities;
• then the user proceeds to upload the advertisement, as well as to identify the keywords to be associated with it and the categorization of interest (e.g. toys, clothing, etc.); and
• the advertisement is then subjected to examination by a software program which, using automatic methods, verifies its compliance with the terms and conditions of the contract, and is then published.

In the opinion of the Lazio Court, all the indices determine the exclusion of liability of the operator from the internet platform for illegal content placed on it by third parties. In fact, the intervention of the operator does not have a “deliberate” character, since it is not disputed, nor proved, the “full knowledge of the consequences of the behavior” of Google that had set up a system capable of “blocking” immediately the illegal ads and is promptly activated to remove the ad that has occasionally forced such system.

The nature of the prohibited message

The Lazio Court disagreed with Google’s assumption regarding the lawfulness of the message. In fact, the general nature of the prohibition of the Italian gambling advertising ban prohibits with a deliberately broad and all-inclusive formula any form of advertising, even indirect, of gambling. It is therefore irrelevant that the advertised site does not allow gambling per se.

What does this ruling change for the gambling market?

It is difficult to argue that this ruling significantly impacts the gambling market in Italy.  In fact, the fundamental assumption of the decision of Lazio Court is the lack of knowledge by Google of the illegal activity of its advertiser.  Therefore, it is to be wondered what would have been the outcome of the dispute if Google had not adopted the measures aimed at avoiding the advertising of games with cash winnings and the advertiser had managed to circumvent them.

The reasoning of the Lazio Court could be replicated only in the event that other scenarios were to arise in which the publication of online ads is totally automated and provides for control measures aimed at limiting the possibility of publishing ads in violation of the ban.

On a similar topic, you can read “Top 3 best practices to handle the Italian gambling advertising ban“.

Photo by Kai Wenzel on Unsplash