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 purposes and other objectives. These platforms are managed by hosting providers, which offer professionals, companies and private the necessary infrastructure to make their websites and web pages accessible online. As owners of digital platforms, hosting providers may be held responsible in case the content published on their networks infringe legal rules intended 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 Directive on electronic commerce which provides for an exemption from liability for suppliers who are not aware of unlawful activities carried out through their services, provided that they act promptly to remove such content as soon as they are known. The European and national jurisprudence attaches this exemption exclusively to passive hosting providers, i.e. to those operators who operate exclusively automatically and therefore cannot be aware of the potential illicitness of uploaded content. In contrast, the active hosting provider is the one who performs filtering and content selection through an entrepreneurial management. Recently, the State Council addressed the issue of the responsibility of hosting providers by establishing, with judgment 4277/2024, confirmation of a penalty imposed by AGCOM to Google Ireland Limited.

The company in question has been subject to an administrative penalty for violating the prohibition established by Article 9 of the Decree Law 87/2018, which prohibits any form of advertising, even indirect, concerning games or bets with monetary wins, through any means, including sports, cultural or artistic events, media broadcasts, press and internet. From 1 January 2019, the ban also extends to sponsoring events, activities and other promotional communications, including visual and acoustic mentions. In this case, AGCOM, in its task of monitoring the respect of such prohibitions, noted that looking for "on-line casino" on Google, the http://sublime-casino.com appeared as "announcement", presenting 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, claiming that it could not be held responsible for its purely instrumental function and for the impossibility to control the content of all listings. However, the State Council rejected this interpretation, highlighting that Google operated 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 assumed 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, since the compensation of advertisers is linked to the number of message views. Moreover, it is important to note that Directive 2000/31/ EC explicitly excludes, in Article 1, paragraph 5, gambling activities with cash bets, including lotteries and bets, prohibiting not only such practices but also their advertising. Legislative Decree 70/2003 confirmed the non-extension of the rules of favor to these activities. With the exclusion of the national discipline of favor, the College examined whether the indicative elements of the conduct prohibited by Article 9 D.L. 87/2018 were present and, having no doubt about the typicality of the conduct, it considered necessary to ascertain the presence of the subjective element. It should be pointed out that, in the event that unlawful conduct concerns a legal person, the subjective element is more like a normative than psychological question, leading the judge to focus on the exigibility of the lawful conduct. In the specific case, the State Council established that the company could and had to verify the nature of the content distributed online, given its active role in positioning qualified content as "announces". Contrary to recent jurisprudence, the State Council indicated that large companies like Google are obliged to