Google Ads is active hosting provider. The Council of State shall express its views on this matter.
Digital platforms represent virtual spaces where advertisers can upload content for economic and other purposes. These platforms are managed by hosting providers, which offer professionals, businesses and individuals the infrastructure needed to make their websites and web pages accessible online. As owners of digital platforms, hosting providers can be held responsible if content posted on their networks violates legal rules designed to protect collective interests.
With regard to the liability of hosting service providers, it is appropriate to recall the provisions of Article 14(1) of the E-commerce Directive which provides for an exemption from liability for suppliers who are not aware of illegal activities carried out through their services, provided that they act promptly to remove such content as soon as they become aware of it. European and national case law only grants this exemption to passive hosting providers, i.e. those operators who operate only automatically and who, therefore, cannot be aware of the potential illegality of the uploaded content. In contrast, the active hosting provider is the one that performs filtering and selecting content through business management. Recently, the State Council addressed the issue of the liability of hosting providers by establishing, by judgment 4277/2024, confirmation of a sanction imposed by AGCOM on Google Ireland Limited.
The company in question was subject to an administrative sanction for violating the prohibition established by Article 9 of Decree-Law 87/2018, which prohibits any form of advertising, including indirect advertising, concerning games or bets with monetary winnings, by any means, including sports, cultural or artistic events, media broadcasts, press and internet. As of 1 January 2019, the ban also extends to sponsorships of events, activities and other promotional communications, including visual and acoustic mentions. In this case, AGCOM, in its task of monitoring compliance with such prohibitions, noted that looking for "online casino" on Google, the site http://sublime-casino.com appeared as "advertising", submitting an invitation to join a new online casino with over 400 games. Google Ireland defended its position by recalling Article 16 of Legislative Decree 70/2003, arguing that it could not be held responsible for its purely instrumental function and for the impossibility of controlling the content of all advertisements. However, the State Council rejected this interpretation, highlighting that Google was operating through the Google Ads service, which allows the publication of sponsored links associated with specific keywords chosen by the advertiser, and not through the traditional search engine.
In this context, the company has taken a proactive role in promoting specific content that is prohibited, thus losing its neutrality as it had a direct economic interest in the success of the advertising campaign, as the remunerations of advertisers are linked to the number of messages views. Furthermore, it is important to note that Directive 2000/31/EC explicitly excludes, in Article 1(5), activities related to gambling with cash betting, including lotteries and betting, prohibiting not only such practices but also their advertising. Legislative Decree 70/2003 confirmed the non-extension of the regulations in favour of these activities. With the exclusion of the national framework of favour, the College examined whether there were any indicative elements of the conduct prohibited by Article 9 D.L. 87/2018 and, having no doubt about the typicality of the conduct, it considered necessary to ascertain the presence of the subjective element. It should be made clear that, in the case of unlawful conduct involving a legal person, the subjective element is more a regulatory than a psychological issue, leading the judge to focus on the enforceability of lawful conduct. In the specific case, the State Council established that the company could and should verify the nature of the content distributed online, given its active role in the placement of content qualified as "announces". Contrary to recent case law, the State Council indicated that large companies such as Google are obliged to