AGCOM fines Meta for non-compliance with a ban on advertising games with cash prizes on Facebook
AGCOM has ordered the company Meta Platforms Ireland Limited to pay an administrative penalty of € 750,000.00 for advertising on the Facebook platform, which it owns, games with cash prizes, in violation of Article 9 of Italian Decree-Law No. 87/2018, the so-called Dignity Decree. This provision, aimed at combating gambling disorder, prohibited any form of advertising, even indirect, relating to games or bets with cash prizes, carried out on any medium, including social networks.
During the preliminary investigation, the Irish company referred to Directive 2003/31/EC (the so-called E-Commerce Directive), transposed into Italian law by Legislative Decree No. 70/2003 (the so-called E-Commerce Decree), in order to assert the absence of any liability on its part as a passive hosting provider. According to Meta, in fact, the legislation freed them of any obligation of prior inspection of the publication of content uploaded on Facebook.
The Irish company also denied having infringed Article 9 of the Dignity Decree, since Meta would not fall within the subjective scope of the provision, as demonstrated by the fact that it does not have an Italian office, has not received any concession for the offer of paid gaming in Italy from the Customs and Monopolies Agency, and is not a provider of audio-visual media services. In support of its position, it attached a precedent before the Lazio Regional Administrative Court, in which in a similar case Google Ireland Limited had been held exempt from liability.
AGCOM immediately clarified that Article 9 of the Dignity Decree prohibits the advertising of games and prizes by any means, including through social media. The Authority then went on to object to the fact that the hosting providers' liability exemption regime does not apply in the proceedings at issue because the E-Commerce Decree itself excludes gambling from its scope. In addition, with the Dignity Decree, the Italian legislature introduced an absolute prohibition which offers no margin of discretion. AGCM noted that, in any event, before publishing the advertisement, Meta carries out a check on it to ensure that it complies with the platform's advertising regulations, as expressly stated in Facebook's policies. From this follows the conclusion that Meta is aware of the sponsored content (which, indeed, it expressly authorises) and therefore, irrespective of the applicability of the E-Commerce Directive, it would be under an obligation to take action to remove the illegal content.
The AGCOM stated that the games advertised on the social network site, Facebook, in this case differ in nature to those normally uploaded by users since they are to be qualified as 'sponsored' and Meta receives a payment in consideration for this activity. Moreover, the fact that the content is sponsored entails a higher visibility given the greater possibility of being intercepted by Facebook's algorithm. This is in clear contrast to the aim of the Dignity Decree.
For the reasons set out above, the AGCOM ordered the Irish company to pay the administrative penalty imposed for breach of Article 9 of the Dignity Decree and obliged it to prevent each of the sponsors subject to these proceedings from promoting content identical or similar to that considered unlawful.
