The Lazio Court ruled in favor of Google in a case that claimed that the international technology giant had allegedly violated the Italian gambling advertising ban.
The Autorità per le Garanzie nelle Comunicazioni (AGCOM), or the Italian Communications Authority, issued a €100,000 fine against Google. At the time, the regulator said that the technology company breached the gambling advertising ban in Italy, as its Google Ads service had allowed advertising of games offering cash winnings.
Google has appealed the sanction, taking it to the Lazio Court. The international tech giant argued that the company’s role should be considered a “hosting provider”. Under the liability regime unveiled in the EU eCommerce Directive 200/31, a company that serves merely as a hosting provider cannot be held liable for the content of the information that an advertiser uploaded on its web platform. Such provider is also not required to check and verify the content of the ads published by advertisers.
In its appeal to the Lazio Court, the technology giant noted that even before the Dignity Decree, under which the gambling advertising ban in Italy was unveiled, came into force, Google Ads’ Advertising Rules prohibited the published advertisements of paid games and bets. The company also explained that it had introduced special automatic software aimed at preventing advertisers from breaching the country’s advertising rules by publishing such adverts.
Furthermore, Google noted that the advertiser managed to bypass the abovementioned automatic software through a fraudulent technique known as “cloaking”. The technology company also explained that it immediately suspended the user’s account and removed the controversial advert.
Italian Communications Authority Could Sanction Foreign Subjects, Court Says
Earlier this week, the Lazio Regional Administrative Court issued its ruling 11036/2021.
In the decision, the court held that the AGCOM can issue sanctions against a foreign subject, although such entities are normally subject to the regulation of the authorities of the EU member state in which it is established. When it comes to gambling advertising, the Italian Communications Authority has sanctioning powers because gambling is explicitly excluded from the scope of the abovementioned Directive. In addition, there is no specific EU legislation that is aimed at the regulation and sanctioning of online gambling and advertising associated with it.
The court also found that the sanctioning power of the AGCOM in such cases is not limited by the position the regulatory body takes on its own or by the Guidelines the regulator established for advertising of games offering cash winnings.
Google Must Not Be Held Liable for Advertisers’ Violations on the Google Ads Platform
The Lazio Court Google should be considered a non-active hosting provider in its Google Ads Service, which is why it should not be held liable for any violations of the Italian gambling advertising ban.
The court explained that Google Ads is a hosting service and it is activity is considered automated in nature, which means that “the manipulation of messages” is pretty much impossible. In these circumstances, it believes that the active role that would make the operator responsible for the violations is basically lacking.
In line with decision 236/2008 of the European Court of Justice, the findings of the Lazio Regional Administrative Court mean that Google cannot be held liable for the data stored at the request of an advertiser unless it failed to remove such data or ban access thereto as it has been aware of the unlawful nature of such gambling advertising data.
The court took into account the fact that advertisers have full autonomy when creating the ads and it is the advertiser who determines the ads’ content through an automated process. Also, a special account is created upon the user’s registration to Google Ads, with the user required to accept the Advertising Rules, which include thorough information on the restricted or prohibited activities.
According to the court’s ruling, Google must not be held liable for any illegal content placed on its Google Ads platform by third parties. The court also said that the intervention of the international technology company must not be considered deliberate.
