CJEU Ruling Punches a Hole in YouTube's Liability Shield
The EU's top court has handed Google an uncomfortable decision: review a creator's content before signing a commercial deal with them, and you might just forfeit the legal protection that keeps platforms from being responsible for what users post.
The case has its roots in a €750,000 fine slapped on Google Ireland by Italy's communications regulator back in 2022. The offending content was a series of YouTube videos promoting online gambling. Fairly clear-cut, you might think. But the interesting legal question wasn't about the videos themselves — it was about what Google did before the ads started running.
Before entering its revenue-sharing arrangement with the channel, Google reviewed the content. The idea was presumably to check the channel was suitable for pre-roll advertising. The Italian regulator argued that by doing so, Google stepped outside the comfortable role of passive intermediary and into something closer to an active participant with actual knowledge of what it was monetising.
The Court of Justice of the European Union agreed with that logic. The intermediary liability exemption has always depended on a platform being essentially hands-off — no knowledge of, no control over the content it hosts or transmits. Once Google's staff had gone through a channel's videos, themes, metadata and view counts as part of a commercial assessment, that defence becomes considerably shakier.
The court's ruling makes clear that the exemption does not apply where a platform operator has examined a channel's content — including its subject matter, its most popular or recent uploads, or associated metadata — as part of agreeing commercial terms with the creator.
To be clear, this doesn't suddenly make Google liable for everything on YouTube. The platform hosts billions of hours of video and the ruling is narrowly focused on situations where Google has conducted a content review as part of striking a commercial deal. That's a specific circumstance, not a blanket abolition of intermediary protection.
Still, the implications are real. Any channel that went through a vetting process before being brought into a monetisation arrangement is now potential legal exposure territory. Google will need to think carefully about how its ad partnership workflows interact with its liability position.
The final decision on the original fine now falls to Italy's Council of State. Google, for its part, is not taking the ruling quietly. A spokesperson said the company was "disappointed" by the decision and would be pushing its arguments before the Council of State while seeking further clarity on what the ruling actually means in practice.
Translation: the lawyers are going to be busy.