EU court narrows YouTube liability shield for reviewed partner channels

The Court of Justice of the European Union has limited Google's ability to invoke intermediary liability protections for YouTube content when the company has reviewed a creator's channel as part of a commercial arrangement. The ruling sends a dispute over a €750,000 Italian regulatory fine back to Italy's Council of State and puts more pressure on platforms that pair revenue-sharing deals with content checks.

The case concerns a 2022 penalty imposed on Google Ireland by Italy's communications regulator over YouTube videos that promoted online gambling. Google had entered into a revenue-sharing agreement with the creator, under which it placed pre-roll ads on the channel's videos. Before that deal was signed, Google examined the channel's content.

Italy's regulator argued that the review mattered because it weakened Google's claim that it was acting as a neutral intermediary with no knowledge or control over the material being hosted. Google challenged the fine, and the dispute was referred to the EU's top court.

The CJEU rejected Google's interpretation of the liability exemption. The court said the protection remains available where a service provider has no knowledge of, and no control over, the information being transmitted or stored. In this case, however, the court found that Google was aware of the content because it had reviewed the channel before entering the commercial partnership.

According to the court, the exemption does not apply to a platform operator that has agreed commercial terms with a channel when the operator has examined that channel's content. The court said that examination can include a review of the channel's main subject, its most-viewed or newest videos, or related metadata.

What the ruling changes

The decision does not make Google liable for all content uploaded to YouTube. Its narrower effect is on channels where the platform has both a commercial relationship and specific knowledge gained through a content review. In those cases, Google may have a harder time arguing that it was merely an intermediary with no relevant awareness of the material at issue.

For platforms, the operational tension is clear: monetization partnerships often involve checks before ads are placed against creator content, but those checks can create a record of knowledge. The CJEU's ruling indicates that a platform cannot necessarily combine that review process with the broadest form of intermediary defense if regulators later challenge the content.

The case now returns to Italy's Council of State, which will decide the dispute. The CJEU ruling does not itself resolve whether Google must ultimately pay the €750,000 fine. It sets the legal interpretation that the Italian court must apply.

Google criticized the decision and said it will continue the case in Italy. "We are disappointed by the CJEU's decision, which we will need further clarity on," a Google spokesperson said. "We ⁠will raise our arguments before the Council of State."

The company did not disclose whether it plans to change how YouTube reviews channels before entering revenue-sharing arrangements, or whether it expects the ruling to affect other commercial partnerships on the platform.

This story draws on original reporting from The Register.