Why Google was fined for breach of the Italian gambling advertising ban

New parameters set out by AGCOM for the application of the rules on the Italian gambling advertising ban

The reasons for the decision against Google for breach of the Italian gambling advertising ban unveil new elements to be considered during marketing activities on the Internet.

As previously reported, Google was fined by AGCOM, the Italian communications authority, for breach of the Italian gambling advertising ban, but the reasons of the decision are only now available.

The challenged gambling ad published in Google sponsored search results

As part of the AGCOM’s ex officio monitoring activity, it was found that on 14 and 15 November 2019, on the website search page, by typing the keyword “online casino“, in the list sent back by the search engine, the site qualified as “announcement” appeared at the top, briefly described as “Join Now at the New Italian Online Casino. Play Over 400 Games Now – Join Now And Register Less Than 30 Seconds! No Downloads. Safe and Secure“. Based on these findings, AGCOM had challenged Google’s conduct.

According to the justifications proposed by Google, the advertiser chooses freely:

  • the keywords he wants to associate with its ad;
  • the content of the advertisement, and
  • the site to which it refers as well as the categorization of the goods and services advertised.

The advertiser, therefore, assumes all responsibility for the content and in relation to compliance with applicable laws, while according to the defensive argument, in the light of the description of the functioning of the Google Ads platform, Google is a hosting provider and therefore not responsible for information hosted at the request of the recipient of the service, provided that it is not actually aware that the activity or information is illegal.

In addition, Google claimed that there is no liability in relation to the disputed advertisement, as the advertisement did not contain any reference to gambling activities and the advertiser has allegedly engaged in a software bypassing behavior called cloaking, which consists of showing the software a page to which the advertisement is directed in accordance with the regulations and then showing users a different one.

As far as the territorial scope of application, AGCOM has clarified that this must necessarily be identified in the light of the consolidated “destination” principle. of the service” (in this sense see Tar Lazio, sent. no. 1739/2018 and last Tar Lazio ord. no. 4873/2020 and 5228/2020). In addition, the Guidelines on the Italian gambling advertising ban providing a precise definition of the owner of the dissemination or destination site have clarified that only providers of indexing services in exchange for consideration are subject to its provisions. Therefore, the Google Ads service is a paid online advertising positioning service that operates through “search keys” defined by the advertiser who, in order to use the service itself, accepts the “Google Ads advertising rules” guaranteeing better positioning.

AGCOM’s position on the breach by Google of the Italian gambling advertising ban

According to AGCOM, the Google Ads service does not consist of simply “storing” the advertising content created by the user but provides for it to be processed by the system (after verification) in order to guarantee its effective positioning in relation to the search words entered by users and the profiling of their navigation. To this end, it has been noted that “the memory space allocated to the promotion of a user’s website is proportionally irrelevant compared to the space occupied by algorithms and management systems used to manage the advertisement itself“.

With reference to the second argument, Google’s advertising standards were not considered sufficient to hinder the cloaking activity as the parameters of the software used in the (dual) verification activity were not adjusted. Indeed, the advertiser was able to insert the keywords “Casino Online” “Play Now”. (prohibited by the Italian gambling advertising ban) without Google’s verification procedure prohibiting its subsequent publication. The verification, therefore, focused on incorrect parameters, since it did not verify them:

  1. the nature of the advertiser i.e., the rules on the Italian gambling advertising ban provide for an exception to the ban only for advertising carried out by state entities of deferred lotteries; and
  2. the use of words that unequivocally fall within the scope of the prohibited gambling advertising.

What are the main takeaways of the AGCOM decision against Google?

Based on AGCOM’s position, we can conclude that

  1. AGCOM’s subject of the complaint was not to have hosted prohibited gambling advertising content, but to have allowed it to be distributed via the Google Ads service on the basis of an agreement in exchange of consideration between the platform and the web operator;
  2. The entrance into an agreement in exchange of consideration has led per se to the assumption of liability by Google;
  3. Providers must equip themselves with their own software for the verification of a system for the inhibition of the association of keyword advertisements prohibited by the Italian gambling advertising ban;
  4. The circumstance that the advertised website does not redirect to games of chance is not sufficient to exclude the applicability of the regulations on gaming advertising as the keyword “online casino” is used with the clear and unequivocal intention of promoting activities prohibited under the rules of the Italian gambling advertising ban.

On the same topic, you may find interesting the article “New fine for breach of the Italian gambling advertising ban“.

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Vincenzo Giuffré

Lawyer at DLA Piper IPT Italy, Milan| Gambling and Gaming Sector| eSports, Media, Sports and Entertainment | Bocconi University | University of Minnesota - W. Mondale Law School | Visiting Student at National University of Singapore (NUS)

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