Opinion of Advocate General Szpunar delivered on 27 November 2025.###

1.

A Member State has decided to prohibit all forms of advertising of gambling on its territory. Given the lack of harmonisation in this area and the recognition of the harmful consequences of gambling for individuals and society, such a prohibition may, in principle, be permitted under EU law.

2.

A different question concerns enforcement of such a prohibition, specifically against whom. In particular, the discretion conferred on Member States in the gambling sector must be balanced against the free movement of information society services, under Directive 2000/31/EC. ( 2 )

3.

Can a total ban on the advertising of gambling be enforced against a hosting service provider that operates a video-sharing platform storing third-party content containing such advertising? That is the question raised in the present reference for a preliminary ruling. In order to settle the question, the Court of Justice is invited first to examine whether Directive 2000/31 applies to the activity of that hosting service provider. If so, it will next need to consider whether such a service provider falls within the scope of the exemption from liability laid down in Article 14(1) of that directive. In the affirmative, it will finally be required to assess whether the service provider satisfies the conditions for relying on that legal provision.

4.

Recitals 12, 21 and 42 of Directive 2000/31 are worded as follows:

…

…

5.

Article 1(5) of that directive provides:

‘This Directive shall not apply to:

6.

Under Article 2(h)(i) of that directive:

‘The coordinated field concerns requirements with which the service provider has to comply in respect of:

…

7.

According to Article 3(1) and (2) of that directive:

‘1.   Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field.

2.   Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.’

8.

Section 4 of that directive is entitled ‘Liability of intermediary service providers’. Article 14 thereof, headed ‘Hosting’, provides, in paragraphs 1 and 2:

‘1.   Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:

2.   Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.’

9.

Article 9 of decreto-legge n. 87 – Disposizioni urgenti per la dignità dei lavoratori e delle imprese (Decree-Law No 87 – Urgent provisions for the dignity of workers and undertakings) of 12 July 2018 (GURI No 161 of 13 July 2018; ‘Decree-Law No 87/2018’) prohibits any form of advertising, including indirect advertising, in relation to games or betting with monetary winnings and gambling, however carried out and by any means. It also introduces an administrative fine in the event of infringement of that prohibition, payable by, inter alia, the ‘owner of the means or the site on which those advertisements are broadcast’, of an amount equal to 20% of the value of the sponsorship or advertising and, in any event, not less than EUR 50000. It further gives the Autorità per le Garanzie nelle Comunicazioni (Communications Regulatory Authority, Italy; ‘AGCOM’) the power to apply those penalties.

10.

By decision of 19 July 2022 (‘the contested decision’), AGCOM imposed on Google Ireland Limited (‘Google’) a fine of EUR 750000 for having promoted numerous websites for games with monetary winnings on the video-sharing platform YouTube, in breach of Article 9 of Decree-Law No 87/2018. In particular, AGCOM found that 630 videos (‘the videos at issue’) were uploaded to five channels belonging to the content creator Spike, with which Google had signed a commercial partnership agreement within the framework of the YouTube Partnership Programme (YPP). Accordingly, AGCOM ordered Google to remove those videos from YouTube, as well as any other videos shared by Spike that were similar in content to those identified in the contested decision. Further to the contested decision, Google deleted the videos at issue from YouTube.

11.

Google challenged the contested decision before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio, Italy), which upheld the action. That court considered that the features of Google’s activity relied on by AGCOM were insufficient to prevent Google from benefiting from the exemption from liability provided for under Italian legislation transposing Article 14 of Directive 2000/31.

12.

AGCOM appealed that judgment before the Consiglio di Stato (Council of State, Italy), the referring court. It submitted, first, that Directive 2000/31 does not apply to the present case, since Article 1(5)(d) thereof excludes from its scope ‘gambling activities’ that involve wagering a stake with monetary value in games of chance. Consequently, the prohibition laid down in Article 9 of Decree-Law No 87/2018 is enforceable against hosting service providers. Secondly, even if Google’s activity were not excluded from the scope of Directive 2000/31, the exemption from liability laid down in Article 14(1) of that directive would not apply, due to the commercial partnership agreement signed between Google and the content creator.

13.

For its part, before the referring court, Google claims that Article 1(5)(d) of Directive 2000/31 covers only online gambling service providers. By contrast, it does not include hosting service providers. In so far as concerns the application of Article 14(1) of that directive, Google argues that it is a ‘passive’ hosting service provider and that it was not aware of the illegality of the videos at issue. In particular, it submits that there is no ad personam contract with the content creator since the latter becomes part of the YPP merely by accepting a standard contract drawn up unilaterally by Google.

14.

As regards, first, the exclusion of gambling activities from the scope of Directive 2000/31, the referring court considers that, in the light of recital 21 thereof, all activities related to the gambling sector, including online advertising, are to be excluded from the scope of that directive.

15.

Secondly, should the Court find that Directive 2000/31 applies to the activities of hosting services, the referring court seeks to clarify whether, in the circumstances of the present case, Google falls within the scope of the exemption from liability laid down in Article14(1) of that directive.

16.

In that regard, the referring court points out that that regime is to apply to ‘passive’ hosting service providers only.

17.

Against this background, the referring court highlights the following main features of the partnership agreement signed between Google and a content creator under the YPP framework.

18.

Having regard to those features of the YPP, the referring court takes the view that Google may not be merely ‘neutral’ or ‘passive’ and, consequently, that it may fall outside the scope of Article 14(1) of Directive 2000/31.

19.

In those circumstances, the referring court decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

In the event that the Court of Justice answers the first question in the affirmative …:

20.

Written observations were submitted by Google, the Belgian, Czech, Italian and Portuguese Governments, and the European Commission. The same parties, with the exception of the Czech Government, attended the hearing held on 10 September 2025.

21.

From the outset, although the wording of the first question may suggest otherwise, YouTube is undeniably a multi-thematic video-sharing platform not specifically devoted to sharing gambling-related content.

22.

Moreover, before the referring court, Google relies on the non-advertising nature of the videos at issue, stating that they merely contain information on gambling. The referring court, however, considers that those videos do contain advertising of gambling. Indeed, both the wording and the grounds of the first question appear to rely on that assumption. In the light of the division of tasks between the Court and the national courts, the latter having exclusive jurisdiction to assess the facts before them, ( 10 ) I propose that the Court rely on that assumption too.

23.

It thus follows that, by its first question, the referring court is essentially asking whether Article 1(5)(d) of Directive 2000/31 should be interpreted as meaning that the activity of a hosting service provider consisting of storing videos containing advertising of gambling falls within the scope of that directive.

24.

In order to answer the first question referred, I will first of all provide a brief description of the main principles underpinning Directive 2000/31.

25.

In accordance with Article 1(1) of Directive 2000/31, that directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States. To that end, as stated in Article 1(2) thereof, it approximates certain national provisions on information society services relating to the internal market (Article 3); the establishment of service providers (Chapter II, Section 1); commercial communications (Chapter II, Section 2); electronic contracts (Chapter II, Section 3); the liability of intermediaries (Chapter II, Section 4); and codes of conduct, out-of-court dispute settlements, court actions and cooperation between Member States (Chapter III).

26.

In that regard, the ‘internal market’ clause enshrined in Article 3 of Directive 2000/31 is based on the application of the principles of control in the home Member State and mutual recognition, so that, within the coordinated field defined in Article 2(h) of that directive, information society services are regulated solely in the Member State on whose territory the providers of those services are established (‘the country of origin principle’). ( 11 ) For their part, Chapters II and III of that directive seek to harmonise certain specific aspects of electronic commerce. ( 12 )

27.

Article 1(5) of Directive 2000/31 lists certain ‘fields’, ‘questions’ and ‘activities’ that are excluded from the scope of that directive. These terms all indicate a broad scope. ( 13 )

28.

Moreover, the use of the plural (‘the following activities’) suggests that Article 1(5)(d) of Directive 2000/31 includes more activities than merely offering games of chance via the internet itself. ( 14 )

29.

By contrast, the usual meaning in everyday language of the term ‘gambling activities’ does not appear to include the activities of hosting services. Indeed, ‘hosting’ consists of the storage of information provided by, and at the request of, a recipient of the service. ( 15 ) The core aspect of that activity is storing information, irrespective of its gambling-related nature. This means that that activity is not specific to the gambling sector.

30.

The objective of excluding certain activities from the scope of Directive 2000/31 further supports this interpretation. Indeed, it follows from that directive’s proposal that ‘it is not possible to guarantee the freedom to provide services between Member States given the lack of mutual recognition or sufficient harmonisation to guarantee an equivalent level of protection of general interest objectives’. ( 16 ) The same logic stems from recital 12 of that directive. ( 17 )

31.

It thus follows that Article 1(5)(d) of Directive 2000/31 seeks to prevent, in particular, the application of the country of origin principle to the activities listed therein, so that destination Member States may still apply the requirements stemming from their legislation, without being bound to the principle of mutual recognition. ( 18 )

32.

In the specific case of gambling, the Court has emphasised that legislation on games of chance is one of the areas in which there are significant moral, religious and cultural differences between the Member States. The Court has also acknowledged the morally and financially harmful consequences associated with betting and gaming for the individual and for society. In the absence of EU harmonisation in the field, it is for each Member State to determine in those areas, in accordance with its own scale of values, what is required in order to ensure consumer protection and the preservation of public order. ( 19 ) These are clearly sector-specific interests, which are completely unrelated to the activities of hosting services.

33.

It is true that the Court has also considered that advertising forms part of a policy of controlled expansion of gambling activities, in order to channel them into regulated and authorised circuits and thus fight illegal gambling. ( 20 ) This may be interpreted as meaning that advertising of gambling is a ‘gambling activity’ for the purposes of Article 1(5)(d) of Directive 2000/31. As highlighted by the referring court, that interpretation may be supported by Article 2(h)(i) and recital 21 of that directive, pursuant to which the requirements regarding the quality or content of a service include those applicable to its advertisement. ( 21 )

34.

However, in my opinion, in order to allow Member States to pursue a policy of controlled expansion of gaming, it is neither adequate nor necessary to further exclude the activity of a hosting service provider consisting of storing videos containing advertising of gambling from the scope of Directive 2000/31. In the same vein, the objective of the exclusion laid down in Article 1(5)(d) thereof, referred to in points 30 to 32 of this Opinion, is not affected if that activity falls within the scope of that directive.

35.

It thus follows that, as observed by the Commission, while Article 1(5)(d) of Directive 2000/31 excludes gambling activities from the scope of that directive, Articles 12 to 15 thereof also apply to hosting gambling-related content. ( 22 )

36.

The adoption of the Digital Services Act appears to have confirmed this approach. Article 89(1) of the Digital Services Act removed Articles 12 to 15 of Directive 2000/31. At the same time, Articles 4 to 6 and 8 of the Digital Services Act essentially reproduce Articles 12 to 15 of that directive (as confirmed by Article 89(2) of the Digital Services Act). Significantly, that act does not contain any exclusion of gambling activities from its scope, which means that gambling activities remain excluded from the country-of-origin principle, by virtue of Directive 2000/31. By contrast, gambling-related content is subject to Article 6 of the Digital Services Act, which corresponds to Article 14 of that directive.

37.

In short, the activities of offering games of chance via the internet and, potentially, of advertising gambling are those envisaged by Article 1(5)(d) of Directive 2000/31. A video-sharing platform does not engage in either of these activities; it therefore falls within the scope of that directive.

38.

This does not prevent the Italian rule prohibiting the advertising of gambling from being enforced against information society service providers offering genuine advertising of gambling services. This is due to the fact that these services are excluded from the scope of Directive 2000/31 by virtue of Article 1(5)(d) thereof and, therefore, from the country of origin principle.

39.

A further methodological remark may be made. I believe that, at this stage, one should not seek to determine whether, in practice, the hosting service provider controls the content that it stores. That assessment is required under Article 14(1) of Directive 2000/31, as a provider which controls the information it stores is not covered by that provision. By contrast, for the purposes of Article 1(5)(d) of that directive, it is sufficient to conclude that the activity at issue consists of storing information, irrespective of its content, at the request of the recipient of the service. ( 23 )

40.

Accordingly, my proposed reply to the first question is that Article 1(5)(d) of Directive 2000/31 must be interpreted as meaning that the activity of a hosting service provider consisting of storing videos containing advertising of gambling falls within the scope of that directive.

41.

If the Court replies to the first question in the affirmative, it will have to determine whether the activity of a hosting service provider such as Google, which involves storing content of third parties with which it has concluded a commercial partnership agreement, falls within the scope of Article 14(1) of Directive 2000/31.

42.

That provision establishes an exemption from liability of hosting service providers in relation to content stored on their platforms by third parties.

43.

As interpreted by the Court, that provision essentially requires a two-step analysis. ( 24 )

44.

First, in order to fall within the scope of Article 14(1) of Directive 2000/31, a service provider must provide an information society service that consists of ‘hosting’ within the meaning of Article 14 thereof; ( 25 ) moreover, its conduct must be limited to that of an ‘intermediary service provider’. ( 26 )

45.

Secondly, paragraph 1(a) and (b) of that provision determine whether the exemption from liability can be relied upon in a specific case. ( 27 ) In order for that to be the case, the provider must not have actual knowledge of illegal activity (subparagraph (a)) or, upon obtaining such knowledge, acts expeditiously to remove or to disable access to the information (subparagraph (b)).

46.

In that regard, as I will develop below, for the purposes of ascertaining whether the conduct of the service provider is limited to that of an intermediary (first step), one should essentially focus on whether the service provider controls content stored on its platform by virtue of how its business model is designed and operated. If that is not the case, one should proceed to the second step, which requires an analysis of the provider’s knowledge of the illegal nature of specific content. ( 28 )

47.

That has relevant implications.

48.

First, as clarified by the Court in its judgment in YouTube and Cyando, the conditions for considering that subparagraph (a) or (b) of Article 14(1) of Directive 2000/31 are not fulfilled are particularly stringent, as they ultimately determine that a hosting service provider may be found liable for specific illegal content uploaded to its platform by a user. ( 29 ) Such a high threshold is not required to assess whether the provider controls content uploaded to its platform by a third party. Skipping the first step would therefore result in undesirable situations: certain service providers that inherently interfere with and control content on account of their business model could nonetheless escape liability by arguing that they lacked actual knowledge of specific illegal content.

49.

Secondly, and similarly, subparagraphs (a) and (b) appear unsuitable for addressing the specificities of the business model of a platform that may prevent it from ultimately relying on the exemption from liability. Blurring the distinction between the two steps would thus risk rendering the business model of a given platform mostly irrelevant.

50.

That said, the two steps are certainly related. The first step essentially works as a ‘filtering’ mechanism and is a pre-condition for subparagraphs (a) and (b) to apply. ( 30 )

51.

According to the case-law, in order for a service provider to fall within the scope of Article 14(1) of Directive 2000/31, it is essential that it be an intermediary provider within the meaning intended by the legislature in the context of Section 4 of Chapter II of that directive. ( 31 )

52.

In that regard, it follows from recital 42 of Directive 2000/31 that the exemptions from liability established therein cover only cases in which the activity of the information society service provider is ‘of a mere technical, automatic and passive nature’, which implies that that service provider ‘has neither knowledge of nor control over the information which is transmitted or stored’. ( 32 )

53.

The Court has thus inferred from that recital 42 that it is necessary to examine whether the role played by the operator is neutral, that is to say, whether its conduct is merely technical, automatic and passive, which means that it has no knowledge of or control over the content it stores, or whether, on the contrary, that operator plays an active role that gives it knowledge of or control over that content. ( 33 )

54.

In this regard, I note that, in his Opinion in L’Oréal and Others, Advocate General Jääskinen argued that recital 42 of Directive 2000/31 should only concern Article 12 (‘Mere conduit’) and Article 13 (‘Caching’), the criteria it sets being unsuitable as regards Article 14. ( 34 ) It has also been advanced that, in the judgment in L’Oréal and Others, the Court implicitly followed the Advocate General’s approach, since it did not refer to that recital. ( 35 )

55.

My view is that the debate is overblown. In the judgment in L’Oréal and Others, the Court, despite not specifically mentioning recital 42 of Directive 2000/31, reaffirmed the test developed in paragraph 114 of the judgment in Google France. ( 36 ) Furthermore, in its judgment in YouTube and Cyando, the Court explicitly referred to that recital. ( 37 ) Finally, recital 18 of the Digital Services Act has developed and clarified recital 42 of that directive by precisely ‘codifying’ the case-law that relies on the latter recital for the purposes of interpreting Article 14 of that directive. It is therefore clear that the test resulting from that recital, as interpreted by the Court, also applies to hosting service providers.

56.

That said, I concur with Advocate General Jääskinen’s view that, taken in isolation, ‘neutrality’ may not be the most appropriate test for determining whether a hosting service provider is covered by Article 14(1) of Directive 2000/31. ( 38 ) Indeed, it is debatable whether hosting service providers could ever be considered entirely ‘neutral’. In principle, a hosting service provider which derives advertising revenue from its platform is interested in increasing the number of users and views. Likewise, the dichotomy of the passive or active role appears to be insufficient in addressing the activities conducted by a hosting service provider, especially in such an ever-changing field. In any event, it seems to me that, pursuant to the case-law, both neutrality and passivity envisage a business model that is a priori based on a lack of ‘knowledge of or control over content’. ( 39 ) In essence, neutrality and passivity should be understood by reference to the content that creators upload to a platform.

57.

What kind of intervention on the part of a hosting service provider may thus place it outside the scope of Article 14(1) of Directive 2000/31? In order to answer this question, I suggest, first, focusing on the criteria of knowledge of or control over content, as well as the lack thereof, in accordance with existing case-law. In the light of the circumstances of the present case, I will then propose a clarification of the meaning of some of these criteria.

58.

The case that gave rise to the judgment in Google France concerned the activity of the paid referencing service ‘AdWords’. That service enables any economic operator, by means of the reservation of one or more keywords, to obtain the placing of an advertising link to its site, in the event of a correspondence between one or more of those words and those entered in Google’s search engine by an internet user. That advertising link appears under the heading ‘sponsored links’, which is displayed either on the right-hand side of the screen, to the right of the natural results, or on the upper part of the screen, above the natural results. ( 40 )

59.

When examining whether that activity was covered by Article 14(1) of Directive 2000/31, the Court found that the role played by Google in the drafting of the commercial message which accompanied the advertising link or in the establishment or selection of keywords was relevant. ( 41 ) This essentially means that an operator that takes part in drafting, creating or selecting content falls outside the scope of that provision.

60.

The case that gave rise to the judgment in L’Oréal and Others concerned an electronic marketplace operated by eBay International AG (‘eBay’), on which listings of goods are offered for sale by persons who have created a seller’s account. eBay charges a percentage fee on completed transactions and enables prospective buyers to bid for items offered by sellers, as well as to buy them for a fixed price. Sellers can also set up online shops on its sites. In some cases, eBay assists sellers in order to enhance their offers for sale, to set up online shops, to promote and increase their sales. It also advertises some of the products sold on its marketplace using search engine operators such as Google to trigger the display of advertisements. ( 42 )

61.

Given these features of eBay’s marketplace, the Court affirmed that where an operator has provided assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting those offers, it must be considered not to have taken a neutral position between the customer-seller concerned and potential buyers, but to have played an active role of such a kind as to give it knowledge of, or control over, the data relating to those offers for sale. It cannot then rely, in the case of those data, on the exemption from liability referred to in Article 14(1) of Directive 2000/31. ( 43 )

62.

Finally, in the judgment in YouTube and Cyando, the Court considered, in particular, whether Article 14(1) of Directive 2000/31 covers the activity of an online platform, such as YouTube, on which users can upload their own videos free of charge and make them available to other internet users. ( 44 ) I would point out that that case essentially concerned YouTube’s ‘ordinary’ provision of hosting services, that is to say, outside the YPP framework that is under discussion in the present proceedings.

63.

The Court found, in particular, that a video-sharing platform that does not intervene in the creation or selection of content uploaded to its platform by users and does not view or monitor that content before it is uploaded, that content being uploaded to that platform automatically, may fall within the scope of Article 14(1) of Directive 2000/31. ( 45 )

64.

In the judgment in L’Oréal and Others, the Court found that the mere fact that an operator of an online marketplace offers for sale on its server, sets the terms of its service, is remunerated for that service and provides general information to its customers cannot have the effect of denying it the exemptions from liability provided for by Directive 2000/31. ( 46 )

65.

In the judgment in Youtube and Cyando, the Court pointed out that the fact that the operator of a video-sharing platform, such as YouTube, implements technological measures aimed at detecting, among the videos communicated to the public via its platform, content which may infringe copyright, does not mean that, by doing so, that operator plays an active role giving it knowledge of and control over the content of those videos, unless information society service providers that adopt measures which seek specifically to combat such infringements are to be excluded from the rules on exemption from liability under Article 14(1) of Directive 2000/31. ( 47 )

66.

Likewise, in interpreting the condition set forth in Article 14(1)(a) of Directive 2000/31, the Court found that the fact that the operator of an online content-sharing platform automatically indexes content uploaded to that platform, that that platform has a search function and that it recommends videos on the basis of users’ profiles or preferences is not a sufficient ground to conclude that it has actual knowledge of illegal activity or information. ( 48 ) A fortiori, as I argued in my Opinion in Russmedia Digital and Inform Media Press, nor are those circumstances capable of excluding that operator from the scope of the exemption from liability provided for in Article 14(1) of that directive. ( 49 )

67.

As outlined above, a hosting service provider may fall outside the scope of Article 14(1) of Directive 2000/31 by (i) participating in drafting, creating and selecting content; (ii) monitoring or reviewing content before its upload; or (iii) optimising it.

68.

Conversely, a hosting service provider may fall within the scope of that legal provision even if (i) it is remunerated for that service; (ii) it implements technological measures to detect illegal content; or (iii) it offers certain displaying functions on its platform.

69.

Two of those criteria are of particular relevance in the present proceedings: the optimisation of the presentation of content and the remuneration aspect. I will therefore focus on them.

70.

‘Optimisation’ is an obscure criterion which can be interpreted in many ways. In particular, one may argue that by offering Verified Partners additional functionalities for their channels, such as live streaming, exclusive content and online chat, ( 50 ) YouTube ‘optimises’ the content creator’s offer.

71.

However, I do not think that that was the meaning intended by the Court in its judgment in L’Oréal and Others. As has already been argued by Advocate General Saugmandsgaard Øe in his Opinion in Youtube and Cyando, ( 51 ) that criterion should be understood by taking into account the specific features of eBay’s activity.

72.

In fact, eBay provided selective and personalised assistance to certain users by improving the content of their offers for sale, assisting them to set up online shops and directly promoting their offers through third-party services. It was in this context that the Court referred to optimisation and promotion of offers for sale as a sign of control over content.

73.

By contrast, when considering whether the activity of eBay fell within the scope of Article 14(1) of Directive 2000/31, the Court did not attribute any relevance to the fact that that online marketplace allegedly defined different categories of sellers depending on their selling performance. ( 52 )

74.

It thus appears that, when using the term optimisation, the Court had in mind the activities of hosting services directly interfering with content uploaded by users. By way of the assistance provided to certain users, the hosting provider inevitably exercises control over content.

75.

Subject to confirmation by the referring court, namely by reference to the terms of the contract framing the YPP as well as to the way they are negotiated, no such assistance appears to be offered to Verified Partners. They are simply offered, on an equal basis, the same additional functionalities of the video-sharing platform, ( 53 ) which do not directly influence the content they create and upload to that platform.

76.

Thus, to my mind, defining different categories of content creators is not in itself problematic, provided that, within each category, no personalised treatment is offered to specific content creators. In providing such treatment, the service provider would necessarily interact with content in such a way that goes beyond merely storing it. In turn, this affords the service provider control over that content.

77.

It is therefore useful to distinguish between ‘technical or display optimisation’ and ‘content optimisation’, since only the latter renders Article 14(1) of Directive 2000/31 inapplicable. ( 54 )

78.

In my opinion, that distinction already results from the judgment in YouTube and Cyando. As I have already mentioned above, it is clear from that judgment that indexing content, creating a search function and recommending videos based on users’ profiles or preferences are not sufficient grounds not to apply Article 14(1) of Directive 2000/31. ( 55 )

79.

In my view, there is no substantive difference between these features of YouTube’s activity considered by the Court in the judgment in YouTube and Cyando and those at issue in the present proceedings. Therefore, they shall both form part of the ‘display optimisation’ category.

80.

The additional functionalities linked to the YPP in fact appear to be a natural development in the information society service provided by a video-sharing platform such as YouTube. ( 56 ) They improve user experience and thus tend to increase the number of clicks, which is inherent in the business model of any video-sharing platform. If that remains within the boundaries of display optimisation then the activity continues to be that of an intermediary. Increasing the number of clicks only becomes problematic if, in order to do so, the platform influences the content itself.

81.

That interpretation is in line with the objectives of promoting innovation ( 57 ) and safeguarding freedom of expression and information of users, ( 58 ) which led to the adoption of the rules on exemption from liability enshrined in Articles 12 to 15 of Directive 2000/31. Indeed, a broad interpretation of the optimisation criterion, such as that described in point 70 of this Opinion, would probably discourage platforms from developing new ways of displaying content shared by content creators that may potentially interest users. ( 59 )

82.

Furthermore, three contextual remarks indicate that a certain level of control over content may in fact be inevitable.

83.

First, pursuant to Article 12(3), Article 13(2) and Article 14(3) of Directive 2000/31, national authorities may require that the service provider terminate or prevent an infringement. ( 60 ) This necessarily entails having a certain level of control over content, without the possibility of relying on the exemption from liability being lost. ( 61 )

84.

Secondly, and despite relying on recital 42 of Directive 2000/31 to establish the conditions under which a hosting service provider falls within the scope of Article 14 of that directive, the Court appears to accept that that service inherently requires a higher level of control over content ( 62 ) when compared to ‘mere conduit’ and ‘caching’. ( 63 )

85.

Thirdly, the control over content test must be applied in the light of what is often referred to as the ‘good Samaritan clause’, evoked by the Court in the judgment in YouTube and Cyando ( 64 ) and currently enshrined in Article 7 of the Digital Services Act.

86.

That said, I acknowledge that the increasing complexity of activities performed by video-sharing platforms, as highlighted by the referring court, makes it extremely difficult to distinguish between activities that influence content and those that do not. ( 65 )

87.

In order to assist the referring court in such a task, it is worth considering a few different scenarios.

88.

A video-sharing platform can assist content creators in reaching a certain number of subscribers, namely by providing them with statistics of topics that are of interest for users, making suggestions on which videos to upload based on those preferences, and advising on how to phrase the channel’s description. ( 66 ) In my opinion, these are clear examples of ‘optimisation’ resulting in control over content, within the meaning of the case-law.

89.

Finally, I would like to focus on another feature of the YPP. It is apparent from the order for reference that Google’s reviewers may examine the channel of the content creator, namely by reviewing a sample of the videos uploaded thereto. ( 67 ) In the light of the interpretation of the ‘optimisation’ criterion that I am proposing, such examinations do not in themselves show any influence on the part of Google over the content uploaded by Verified Partners. What matters is what reviewers do following those examinations: do they suggest certain content edition? Do they ask that some videos be deleted? Do they approve some partners over others based on the content of their channels? If so, Google’s activity may fall outside the scope of Article 14(1) of Directive 2000/31.

90.

Against that background, it is apparent from the information before the Court that Google does not check or monitor the content of videos before they are uploaded by users. Google appears only to examine videos that already exist on the creator’s channel. ( 68 ) Pursuant to the criteria defined in the judgment in YouTube and Cyando, ( 69 ) that suggests a lack of control over content.

91.

In conclusion, subject to confirmation by the referring court, Google does not appear to engage in any optimisation of content uploaded to its video-sharing platform in the context of the YPP.

92.

The Belgian, Italian and Portuguese Governments have essentially argued in the present proceedings that the mere fact that Google shares the revenues generated by advertising and by membership of their channels with Verified Partners renders Article 14(1) of Directive 2000/31 inapplicable. In essence, by sharing revenues with content creators, Google is not neutral.

93.

I do not share this view.

94.

At the outset, I would recall that the Court has expressly ruled out that remuneration automatically excludes the activity of a hosting service provider from the scope of Article 14(1) of Directive 2000/31. ( 70 )

95.

In order to assess whether there are reasons to take a different approach in the present proceedings, I propose to examine the terms under which the operators concerned in the judgments in Google France, in L’Oréal and Others and in YouTube and Cyando were remunerated. I will argue that there appears to be no substantial difference between those cases and the case at hand.

96.

As regards the AdWords referencing service system, a fee was payable by advertisers for each click on the advertising link. ( 71 )

97.

As to eBay’s marketplace, it was common ground that eBay received remuneration inasmuch as it charged a percentage on transactions completed on the basis of offers for sale. Sharing revenues with users was thus inherent to eBay’s business model.

98.

In the case that gave rise to the judgment in YouTube and Cyando, it was common ground that YouTube derived advertising revenue from its platform and enabled both content creators and copyright holders to benefit from that revenue. ( 72 ) No reference was made to revenues resulting from channel memberships. ( 73 )

99.

In the case of Cyando AG, its file-hosting and file-sharing platform offered all internet users, free of charge, storage space for uploading files. Each time a file was uploaded, Cyando automatically created a download link which allowed direct access to the file concerned and automatically sent that link to the user who uploaded it. Users could share those download links on the internet, thus allowing other internet users to access the files stored on Cyando’s platform. The downloading of files from Cyando’s platform was free of charge. However, the quantity and speed of downloads varied according to the type of subscription (paid or unpaid). I would point out that, under a so-called partnership programme, Cyando paid remuneration to users who had uploaded files according to how many times those files were downloaded by other users. ( 74 )

100.

Thus, the fact that a platform shares revenues with certain of its users does not appear to be anything new. Remarkably, the financial model of Cyando’s platform resembled the YPP at issue in the present proceedings. Yet, that did not lead the Court to conclude that Cyando fell outside the scope of Article 14(1) of Directive 2000/31. ( 75 )

101.

It thus follows that, in and of itself, sharing revenues with content creators may not exclude a hosting service provider from the scope of that provision.

102.

That said, it cannot be excluded that the possibility of sharing the success and profits of the channels hosted by a platform may encourage it to influence the content of those channels. It is for the referring court to examine if that is the case, relying on factors such as those identified, in particular, in points 75 to 80 and 88 to 90 of this Opinion.

103.

As a reminder, the following features of the YPP were brought to the Court’s attention by the referring court: the signature of a commercial partnership agreement only with certain users; examination of a sample of the videos uploaded by content creators; additional features of the platform only available for Verified Partners; and revenue sharing.

104.

Bearing in mind the criteria examined in the present section, it seems to me that none of those features is such as to afford Google control over content uploaded by content creators to YouTube, within the meaning of Article 14(1) of Directive 2000/31.

105.

That conclusion is not called into question by Article 14(2) of Directive 2000/31, pursuant to which ‘paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.’

106.

According to the explanations provided by the Commission during the legislative process, ‘authority and control of the provider referred to contractual relationship’. ( 76 )

107.

However, in my view, the mere existence of a contractual relationship between a service provider and a user is manifestly insufficient to render Article 14(1) of Directive 2000/31 inapplicable. In order to establish whether the user is acting under the authority or the control of the provider, the specific terms of the contract must be examined.

108.

In particular, it must be determined whether, by virtue of that contract, an individual relationship between the service provider and each of its users is established.

109.

That appears to be the case, ‘for example, where the provider of an online platform that allows consumers to conclude distance contracts with traders determines the price of the goods or services offered by the trader’. In that scenario, ‘it could be considered that the trader acts under the authority or control of that online platform’ (recital 23 of the Digital Services Act).

110.

By contrast, as I have stated in point 75 of this Opinion, this does not appear to be the case of the partnership agreement signed between Google and all its Verified Partners.

111.

If it is established that the activity of Google falls within the scope of Article 14(1) of Directive 2000/31, it will only be exempted from liability if it satisfies one of the two conditions enshrined in subparagraphs (a) and (b) of that article.

112.

Whether one of those conditions is satisfied in a given case depends entirely on the facts. Therefore, it is a matter that falls within the jurisdiction of national courts, subject to the interpretative guidance provided by the Court.

113.

As regards the condition laid down in Article 14(1)(a) of Directive 2000/31, the Court has in particular clarified that that condition cannot be regarded as not being satisfied solely on the ground that that operator is aware, in a general sense, that its platform is also used to share illegal content. The Court thus concluded that ‘actual knowledge of illegal activity or information’ refers to specific illegal information and activities. ( 77 )

114.

In my opinion, in ascertaining whether Google has actual knowledge of specific illegal information, the referring court should pay particular attention to the examinations conducted by Google reviewers. Indeed, in the judgment in L’Oréal and Others, the Court found that the provider can obtain such knowledge of the illegal nature of the content, inter alia, through its own-initiative investigations. ( 78 ) Moreover, I would point out that in the case that gave rise to the judgment in YouTube and Cyando, where no such verifications were at issue, Google appeared to merely have abstract knowledge that protected content was being made available illegally on its platform.

115.

In carrying out such an assessment, relevant circumstances include the type of illegal content at issue. I note, in that regard, that the case that gave rise to the judgment in YouTube and Cyando concerned content that infringed intellectual property rights. The present case, by contrast, concerns content that contains advertising of gambling, which is prohibited under Italian law. Considering this specific type of illegal content, it should also be assessed whether, by examining, inter alia, the theme of the channel, the most recent videos and the most viewed videos, Google becomes aware of such specific illegal content. In that connection, the fact that the channel in question is entirely devoted to gambling, as pointed out by the Italian Government during the hearing, may indicate that, through the examinations conducted by its reviewers, Google acquired knowledge of specific illegal content. This is all the more the case since Google has developed extensive guidelines for users concerning gambling and gambling-promoting content. Those guidelines include country-specific recommendations, including Italy. ( 79 ) Finally, it may be appropriate to ascertain whether the videos actually examined by reviewers in the present case allowed Google to acquire specific knowledge of illegal content.

116.

If the referring court concludes that, through the examinations conducted by its reviewers, Google has acquired actual knowledge of specific illegal content, the condition laid down in Article 14(1)(b) of Directive 2000/31 will also not be met. Indeed, if that is the case, then when it became aware of the illegal content (while conducting such examinations), Google did not ‘[act] expeditiously to remove or to disable access to the information’.

117.

Therefore, my proposed reply to the second question is that the activity of a hosting service provider, which involves storing content of third parties with which it has concluded a commercial partnership agreement, falls within the scope of Article 14(1) of Directive 2000/31, provided that the precise terms under which that agreement was negotiated, and the clauses thereof, are not such as to afford the hosting service provider knowledge of or control over the content stored on its platform. If, through the examinations conducted by its reviewers, such a hosting service provider acquires actual knowledge of specific illegal content, which is a matter for the referring court to determine, the conditions laid down in subparagraphs (a) and (b) of that provision cannot be met.

118.

In the light of the foregoing considerations, I propose that the Court answer the questions referred by the Consiglio di Stato (Council of State, Italy) as follows: