The Communications Guarantee Authority (AGCOM), following the performance of the ex officio monitoring activity aimed at verifying compliance with the prohibition of advertising relating to games or bets with cash winnings enshrined in Article 9 of the ‘Dignity Decree’, has taken steps to charge Google Ireland Limited with committing an offence by using the ‘Google ADS’ service.
The AGCOM found, between 14 and 15 November 2019, that by typing the keywords “ Casinò Online”, a link with the following description appeared on Google Web Search, in the form of an advertisement: “Join Now To The Brand New Italian Online Casino. Play Over 400 Games Now - Join Now And Register In Less Than 30 Seconds! No downloads. Safe and Secure”. In addition, that site contained a list of links to further websites that, in some cases, allowed paid online gaming.
As a result, the Authority declared a violation of Article 9 of the aforementioned Decree, the aim of which was to combat gambling disorder. The notice of objection was served on 7 January 2020.
After reading the acts, several defence issues were raised and one in particular deserves attention: qualifying Google as an active or passive hosting provider. The former carries out an active conduct, participating with others in the commission of the offence by enriching the use of content in a non-passive manner: filtering, selection, indexing, organisation. The second, on the other hand, is liable for failing to immediately remove the illicit content once he has legal knowledge of the offence. The distinction is relevant to the more favourable liability regime recognised for the latter.
According to the companies belonging to the group, including Google Ireland, they cannot be accused of wrongdoing for the following reason. Considering the description of the functioning of the Google Ads platform, the advertiser chooses the keywords of his ad in complete freedom and is directly responsible for the content. For this reason, Google Ireland can be a passive hosting provider and, pursuant to Article 16 of Legislative Decree No. 70/2003, is not responsible for the information hosted at the request of the recipient of the service as long as it does not have actual knowledge that the activity or information is unlawful or as soon as it becomes aware of such facts, upon notification by the competent authorities, it acts immediately to remove the information or to disable access to it. Moreover, Article 17 does not provide for a general obligation to monitor the information hosted or a general obligation to actively search for facts/circumstances relating to unlawful activities: the company cannot carry out a generalised check on all the content that descends from the ad page. In fact, it would have been the advertiser who wanted to circumvent the verification system set up by Google by engaging in a conduct known as ‘cloaking’, which consists in showing the software an ad destination page that complies with the law, and then showing users a different one.
On the other hand, AGCOM considers, instead, that Google Ads qualifies as a service, for consideration, of indexing and promotion of websites and, therefore, that Google Ireland (as owner of the Google Ads service) undoubtedly falls within the subjects addressed by the prohibition of Article 9 of the ‘Dignity Decree’, as ‘owner of the broadcasting medium’ and ‘provider of paid indexing services.
Therefore, a specific content, the subject of a contract between the platform and the operator of the activity on the web, is contested to the company; this allows it to be affirmed that this stipulation generates an assumption of responsibility by Google. In fact, it is not acceptable, for the same reasons, the assertion that the company exercises the role of merely passive hosting provider, since, in this case, it is not a trivial upload in which the company merely makes available the mere space, but here the space is sold, becoming the object of promotion, thanks to the privileged indexing that sees the site ‘rise’, in order to allow more views by users.
Finally, even if in theory the more favourable regime applied to passive hosting providers were applicable, the conditions would not be met in the present case, since Google was aware of the unlawfulness of the advertising message, having approved it in advance, and did not remove it in a timely manner, given that the same sites could subsequently be reached by typing the same keyword ‘online casino’ on Google Search.
An initial challenge to this measure, on Google's part, was lodged with the Regional Administrative Court in 2021, which, also dwelling on the distinction between active and passive providers, ruled out the existence of the unlawful act ascribed to the companies.
Subsequently, however, with a very recent ruling (13/05/24), the Council of State overturned the thesis of the TAR and the now granitic jurisprudence: Google would not fall within the position of passive hosting provider, but rather active. According to the College, the distinction must be made between Google Web Search and Google ADS, where the former allows users to search for content published by third parties. On the other hand, as regards Google ADS, through which the ad contested by AGCOM was published, it is an online advertising positioning service that allows economic operators to publish “sponsored links” to so-called “destination sites”, which are associated with certain words or search keys, which Google deduces to be chosen by the advertiser.
The Council of State held that this advertising service does not see Google as a mere passive hosting provider, since the company performs a service of indexing and promoting third-party content, thus not remaining ‘neutral’ with respect to that content but promoting it on the market and having its own economic interest in the success of that promotion. Google, in the aforementioned sense, thus achieves ‘control’ over the information published and enables its customers to ‘optimise their online sales’. In the light of this, it therefore found that the conditions required by Community and national case law to qualify an operator as an active hosting provider were fulfilled.
Therefore, the alternative might not be to claim exemption always and in any case, but rather to give up (or reduce the number of) advertisers.