EU court cuts YouTube shield on reviewed channels

Google may not be able to rely on YouTube’s intermediary liability shield when it has already reviewed a creator’s channel as part of a commercial partnership, according to a new ruling from the Court of Justice of the European Union.

The case follows a €750,000 fine imposed on Google Ireland by Italy’s communications regulator in 2022 over YouTube videos promoting online gambling. Before signing a revenue-sharing agreement that placed pre-roll ads on the creator’s videos, Google reviewed the channel’s content. Italian regulators argued that this review weakened Google’s claim that it was acting as a neutral host exempt from liability.

Google appealed, and the dispute was referred to the CJEU. The court rejected the company’s interpretation of the exemption, though the final decision in the case now returns to Italy’s Council of State.

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

That narrows Google’s ability to argue it was merely a passive intermediary in cases where it has specific knowledge of content through partner reviews. The ruling does not make Google liable for all content on YouTube, but it raises the risk for channels tied to commercial deals that involve content checks.

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“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.”