The Enterprise Court of Antwerp found that Apple has allowed elements of in-game loot boxes “elements” in its Belgian app store which “violate Belgian gambling legislation”, according to a court document published on 16 January.
The case in question has been brought to court by a plaintiff named as Mr Ls. They are described as a person with “an iPhone and a gambling problem”. He is being represented by Sirius Legal managing partner Bart van den Brande.
Mr Ls states that between January and November 2021 they spent €67,813 on loot boxes in the game Top War: Battle Game. The mobile app was developed by Honk Kong-based River Game.
Loot boxes, which when purchased give players randomised in-game rewards and items, are classed as games of chance in Belgium and have required an operator licence since 2018.
The plaintiff’s case is aimed at Apple rather River Game. It argues that the US firm should not allow games that violate Belgian gambling legislation in the country’s Apple app store. Mr LS is seeking damages from the US tech giant.
Questions referred to European Court of Justice for clarity around EU directive
Apple claims that if an infringement of the gambling legislation has taken place, it is not liable due to its position as a hosting service under the EU’s Electronic Commerce Directive adopted in 2000.
That directive states that providers of “information society service” and the “storage of information” are not liable for the information stored at the request of service recipients.
However, the claimant’s court action claims the EU’s directive excludes gambling activities from its own scope and that Apple has no immunity in this instance.
Apple argues that the European Commission’s “safe harbour provisions”, a piece of legislation that followed the EU directive, shields companies that store and process information and therefore protects it from liability in this case.
The Antwerp court has asked the Court of Justice of the European Union (CJEU) to answer prejudicial questions regarding the directive and Apple’s contested liability.
It asks the CJEU if gambling activities are excluded from the Electronic Commerce Directive’s liability protection? If so, it also asks “should this concept of ‘gambling activities’ be defined under national law, or is it an autonomous concept of EU law?”
Furthermore, it queries whether software offered for sale on an online platform such as Apple’s app store falls within the concept of ‘information’.
Implications for Digital Services Act
The Electronic Commerce Directive, which was in place during Mr Ls’ alleged time of law violation, was subsequently replaced in 2022 by the Digital Services Act (DSA). However, a CJEU response to the court’s questions could have implications for the DSA and its definition of safe harbour and service provider’s liability.
Commenting on the case, Guillaume de Villegas, legal counsel at Bird and Bird, told iGB: “The European Commission, in its application of the DSA, seems to indicate that software is “information” stored at the request of the recipient and thus that app stores qualify as hosting services in relation to app developers.
“However, the Belgian Court noted that, in the absence of any debate and definitive position on this topic in case-law and doctrine, it considered it necessary to refer a prejudicial question on this issue to the CJEU. If the CJEU were to contradict the, implicit, position of the European Commission, this could have a significant impact on the DSA’s application.”
iGB has contacted Apple for comment.
Last year, the UK’s games industry trade body UK Interactive Entertainment published a number of guidelines that called for technological controls around loot box access, such as restricting them to under-18-year-olds.
Original article: https://igamingbusiness.com/esports/belgium-seeks-eu-clarification-on-apples-liability-for-hosting-illegal-loot-boxes/
