Belgium seeks EU clarification on Apple’s store liability loot boxes
A Belgium court has referred questions to an EU court seeking clarity on the liability of app stores hosting video games that feature loot boxes.
The Enterprise Court of Antwerp has determined that Apple’s Belgian app store hosts video games containing in-game loot boxes that may contravene Belgian gambling laws, as outlined in a court document released on January 16.
This legal action has been initiated by an individual identified as Mr. Ls, who is reported to possess an iPhone and struggles with a gambling addiction. He is being represented by Bart van den Brande, the managing partner of Sirius Legal.
Mr. Ls claims to have spent €67,813 on loot boxes in the mobile game Top War: Battle Game between January and November 2021. This app was developed by River Game, a company based in Hong Kong. Loot boxes, which provide players with randomized in-game items and benefits upon purchase, are classified as games of chance in Belgium and have required an operational license since 2018.
Interestingly, the plaintiff’s lawsuit targets Apple rather than River Game, arguing that the tech company should not permit games violating Belgian gambling legislation on its app store. Mr. Ls is seeking damages from Apple as part of this case.
Legal Questions Posed to the European Court of Justice
Apple contends that if any violation of gambling legislation has indeed occurred, it should not be held liable based on its role as a hosting service under the EU’s Electronic Commerce Directive, initially adopted in 2000.
This directive specifies that providers of “information society services” that store information at the request of users are not liable for that information. However, the plaintiff argues that gambling activities fall outside the scope of this directive, asserting that Apple lacks immunity in this instance.
In its defense, Apple cites the European Commission’s “safe harbour provisions,” which provide legal protection to companies that store and process user information, thereby shielding them from liability. The Antwerp court has forwarded preliminary questions to the Court of Justice of the European Union (CJEU) regarding the directive and Apple’s disputed liability.
The questions posed to the CJEU include whether gambling activities are exempt from the Electronic Commerce Directive’s liability protections. Furthermore, it seeks clarification on whether the term “gambling activities” should be defined through national law or if it constitutes an autonomous concept within EU law. Additionally, the court queries whether software sold on platforms such as Apple’s app store qualifies as “information” under the directive.
Impact on the Digital Services Act
Though the Electronic Commerce Directive was in effect during the timeframe of Mr. Ls’ alleged violations, it was succeeded by the Digital Services Act (DSA) in 2022. The CJEU’s response to these questions may have significant ramifications for the DSA, particularly regarding how it defines safe harbour provisions and service providers’ legal liabilities.
Guillaume de Villegas, a legal counsel at Bird and Bird, commented on the implications of this case to iGB: “The European Commission suggests that software qualifies as ‘information’ stored at the request of the recipient, positioning app stores as hosting services for app developers. However, given the lack of established case law or doctrine on this matter, the Belgian court deemed it necessary to seek a prejudicial question from the CJEU. Should the CJEU take a position that contradicts the European Commission’s implied stance, it could profoundly affect the DSA’s implementation.”
iGB is currently awaiting a response from Apple regarding this matter.
In a related context, last year, the UK’s games industry trade body, UK Interactive Entertainment, published guidelines advocating for technological measures to control access to loot boxes, specifically urging restrictions for users under the age of 18.
