EUROPEAN LAW IN PRACTICE
Article 14 of the e-Commerce Directive (as well as article 6 of the DSA), regarding hosting activities, distinguishes criminal from civil liability. The former can only be established when the provider has “actual knowledge of illegal activity or information” . The latter can however be established when the provider would be “aware of facts or circumstances from which the illegal activity or information is apparent” . In the present case, the issue is civil liability, so there is no need to demonstrate that Apple had actual knowledge. The Court of Justice has issued guidance on how the requirement that a provider must be “aware of facts or circumstances from which the illegal activity or information is apparent” should be interpreted. It found that a hosting provider cannot rely on the safe harbor exemption if it was aware of facts or circumstances on the basis of which a diligent economic operator should have identified the illegality in question and acted accordingly. This is interpreted as covering every situation in which the provider concerned becomes aware, in one way or another, of such facts or circumstances. 14 The Court also finds that “the illegality of the activity or information must be a matter of actual knowledge or must be apparent, that is to say, it must be specifically established or readily identifiable” and refers to the need to maintain a balance between the various interests at stake, which include observance of freedom of expression. It states: “Thus, first, the providers of the services concerned cannot, in accordance with Article 15(1) of that directive, be subject to a general obligation to monitor the information which they transmit or store or to a general obligation actively to look for facts or circumstances indicating illegal activity. Second, pursuant to Article 14(1)(b) of the Directive on Electronic Commerce, those providers must, as soon as they actually obtain knowledge or awareness of illegal information, act expeditiously to remove or to disable access to that information, and must do so with
due regard to the principle of freedom of expression. As the referring court has also pointed out, it is only in relation to specific content that such a provider is able to fulfil that obligation.” 15 As such, it would seem that a mere reference to “loot boxes” would not suffice to hold Apple accountable for gaming software made available on the Belgian market via its App Store. Indeed, not every loot box will constitute gambling under the definition of the Belgian law on games of chance. However, it could be argued that Apple was aware of the fact that real money, in large amounts, was being paid by players for these loot boxes. Indeed, payments go through Apple’s eco- system. 16 This could have (and perhaps should have) triggered additional scrutiny from Apple with regard to possible illegal gambling activities. The Belgian legal framework, and more specifically the interpretation of the Belgian Gaming Commission regarding loot boxes, was covered extensively in the media and could be considered as something that should have been known to Apple. Furthermore, it should be noted that the safe harbor liability regime can never apply “when the recipient of the service is acting under the authority or the control of the provider.” 17 The e-commerce directive states in consideration (42) of its preamble: “The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored.”
14 CJEU (Grand Chamber), 12 July 2011, C‑324/09, L’Oréal, ECLI:EU:C:2011:474, point 120-121. 15 CJEU (Grand Chamber), 22 June 2021, Joined Cases C 682/18 and C 683/18, Youtube and Cyando, ECLI:EU:C:2021:503, point 113. 16 See for more detail the opinion of Advocate general M. CAMPOS SÁNCHEZ-BORDONA of 27 March 2025, C‑34/24, Stichting Right to Consum- er Justice, ECLI:EU:C:2025:212, point 10-11. 17 Art. 14 (2) e-commerce Directive and art. 6 (2) Digital Services Act.
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IMGL MAGAZINE | SEPTEMBER 2025
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