Report from Reuters
In Brief – Europe’s highest court has ruled that Google can be held liable for YouTube videos uploaded by content creators with whom it has commercial partnerships, limiting the scope of legal protections for online platforms and potentially exposing social media companies to greater responsibility for partner-generated content. The ruling by the Luxembourg-based Court of Justice of the European Union (CJEU) stems from a dispute between Google and Italy’s communications authority, which fined the company €750,000 in 2021 over videos the regulator identified as gambling advertisements. Google challenged the penalty and an Italian court asked the CJEU for guidance. Google argued that EU rules shield platforms from liability for content uploaded by third parties. The CJEU judges have ruled that the liability exemption applies only when platforms act as neutral intermediaries performing purely technical, automated and passive functions without knowledge or control over the content, but not when a platform reviews a creator’s channel, videos and metadata before entering into a commercial partnership. The case now returns to the Italian court to decide its outcome.
Context – The potential implications for the EU’s longstanding hosting provider liability regime beyond the gambling industry, including as part of the Digital Services Act, are being overlooked in many of the initial reports on the decision. The foundational L’Oréal v eBay and YouTube v Cyando cases required intermediaries to play an “active role of such a kind as to give knowledge of, or control over” the content as issue. The new ruling appears to significantly lower that threshold when a revenue sharing program includes a review of the third-party’s overall content as part of gaining entry, a feature that is not remotely unique to YouTube, but instead is a part of most social media monetization programs, including with TikTok, Twitch, Meta and many ecommerce platforms. Some legal experts have raised the concern that treating partner-program reviews as evidence of specific content knowledge could discourage business program compliance checks at all.