EU court limits YouTube’s intermediary defense

The Court of Justice of the European Union (CJEU) has limited Google’s ability to claim intermediary-liability protection for YouTube content it reviews under a commercial partnership with a creator.

The case concerns a €750,000 fine imposed on Google Ireland by Italy’s communications regulator in 2022. The penalty covered YouTube videos promoting online gambling. Before signing a revenue-sharing agreement that allowed Google to place pre-roll ads on the creator’s videos, the company reviewed the channel’s content.

Italy’s regulator argued that this review undermined Google’s claim that it was a neutral intermediary exempt from liability. Google appealed, sending the dispute to the CJEU.

When intermediary protection may not apply

The exemption applies when “the service provider has neither knowledge of nor control over the information which is transmitted or stored.” But the CJEU found that it does not apply when a platform agrees commercial terms with a channel and examines its content—including the channel’s main theme, its most-viewed or newest videos, or related metadata.

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The decision leaves the Council of State of Italy to resolve the underlying dispute. It does not make Google liable for everything posted on YouTube, but it could restrict the company’s ability to invoke intermediary protection when a commercial deal gives it specific knowledge of a channel’s content.

“We are disappointed by the CJEU’s decision, which we will need further clarity on. We will raise our arguments before the Council of State.”