Affiliates Liable For Dodgy EU Marketing After Google Judgement

Any platform that hosts gambling advertising within the EU is at greater risk for enforcement following a landmark court ruling, with a particularly stark warning issued to the affiliate sector.

In a ruling with implications far beyond the gambling industry, the Court of Justice of the European Union (CJEU) ruled last week that Google is legally responsible for some of the content it hosts on its platform.

The case (C-421/24), which originally began in Italy over a gambling fine, asked whether the tech giant is responsible for the content hosted on Youtube.

Italian regulator AGCOM, which still enforces Italy’s total gambling advertising ban, had issued a fine of €750,000 to Google for Youtube content that it said broke that prohibition.

This month, the CJEU ruled that the US-headquartered company is not responsible for the content in the many billions of posts on Youtube, however it does take on liability when it has reviewed that content.

In other words, in situations where Google and the video creator are in commercial partnership, the tech giant becomes accountable for whatever is depicted in the video.

“The judgment is, in my view, one of the most consequential decisions for the gaming industry in years,” said Giulio Coraggio, a partner with DLA Piper in Italy, speaking to EEGaming.

Affiliated concerns

While the ruling creates some complications for Youtube and Google, the precedent it establishes for EU law more widely is seismic for many other platforms.

Affiliates, in particular, suddenly take on a huge additional layer of responsibility, which either exponentially increases their compliance burden in regulated markets or forces them underground for fear of punishment where they choose to advertise unlicensed brands.

Affiliate sites rarely act as neutral hosting platforms like most of Youtube, instead they are in the business of entering commercial agreements with partners to advertise their gambling services.

Even if affiliates do not produce the advertising content, they could still find themselves on the hook for simply hosting it.

If that advertising is found to breach responsible gambling regulations or to be marketing gambling that is illegal, the affiliate will find themselves directly in the firing line.

For example, in Italy, Coraggio said that AGCOM could begin issuing fines of minimum €50,000 per infringement to affiliates, with each video potentially triggering its own punishment.

In practice, the chilling effect on affiliates in Europe may be that their operator partners simply restrict their use of affiliates.

“The market has long relied on the assumption that content sitting on a third-party platform, formally independent of the operator, was a safer harbour than direct advertising,” said Coraggio.

“That is a commercial risk to the affiliate model that arrives faster than any regulatory action,” he said.

Streaming complications

The judgement specified that a platform need not have control of the content it makes available in order to be held liable for it.

The act of simply signing off on the commercial content you are hosting is enough to establish that you have “knowledge” of it, the judges ruled.

This raises complex questions for streaming platforms like Kick, where influencers regularly stream paid-for gambling content.

Although the platform, which is owned by the same company as controversial crypto gambling giant Stake, is not commissioning the content itself, it is involved in promoting certain streamers through commercial agreements.

Those video services within the EU without such strong links to gambling will now be expected to police the presence of gambling content on their platforms much more intensely.

The interconnection between affiliates and influencers is also under scrutiny.

“If a brand or platform’s affiliate team conducts pre-approval reviews of an influencer’s channel to onboard them into a tiered commission structure, the brand is legally on the hook for what that influencer says in their videos,” warned Malta-based marketing executive, Richard Dennys.

For its part, Google has suggested that it will lobby to change the law so that this massive uptick in liability no longer applies.

“We are disappointed by the CJEU’s decision, which we will need further clarity on,” said a spokesperson. “We ⁠will ​raise our arguments before the Council of State”.

Part of the problem

The ruling in case C-421/24 conforms to a trend that has been developing within the EU for the past few years. 

Not only has the bloc shown a willingness to challenge the role of big tech in European society, but specifically to make these companies liable for the role they play in sharing dangerous and illegal content.

The Digital Services Act, which has been fully in effect since 2024, included powers that were supposed to make it easier for authorities to take down ads for illegal gambling.

Despite this push, gambling regulators continue to complain about the role that Meta, Google and others play in supporting illegal advertising.

Dutch trade group VNLOK is currently attempting to sue Meta for what it alleges are lax controls on illegal ads for black market gambling that appear frequently on Instagram and Facebook.

That dynamic will come under increased scrutiny now that Europe’s highest court has established that platforms cannot plead ignorance about the content of the ads under many commercial arrangements.

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