EUROPEAN LAW IN PRACTICE
The applicability of this provision in this case was also put forward for review by the referring court. The Court of Justice has in the past ruled that the fact “that the operator of an online marketplace stores offers for sale on its server, sets the terms of its service, is remunerated for that service and provides general information to its customers” does not push it beyond a passive intermediary, and such an operator can still enjoy the safe harbor for liability. 18 Similarly, the Court of Justice has stated that the fact “that the operator of a video-sharing platform, such as YouTube, implements technological measures aimed at detecting, among the videos communicated to the public via its platform, content which may infringe copyright, does not mean that, by doing so, that operator plays an active role giving it knowledge of and control over the content of those videos” . 19 However, the creating, selecting, viewing or monitoring of content uploaded to their platforms could place the platform provider in an active rather than passive role. The Court of Justice also finds: “Where, by contrast, the operator has provided assistance which entails, in particular, optimizing the presentation of the offers for sale in question or promoting those offers, it must be considered not to have taken a neutral position between the customer- seller concerned and potential buyers but to have played an active role of such a kind as to give it knowledge of, or control over, the data relating to those offers for sale. It cannot then rely, in the case of those data,
on the exemption from liability referred to in Article 14(1) of Directive 2000/31.” 20 Apple would likely argue that it is simply a passive host of the apps available on its app-store. However, any app that finds its way into Apple’s App Store must first pass a process of review by Apple itself. There are guidelines which must be followed, 21 and which – amongst other things – refer to the content of the apps that are intended for dissemination through the App Store. These guidelines provide, for instance, that “Apps should not include content that is offensive, insensitive, upsetting, intended to disgust, in exceptionally poor taste, or just plain creepy.” Even if these guidelines, or at least some of them, serve a commendable purpose, it is hard to ignore that Apple actively reviews apps before admitting them to the App Store. This goes beyond setting out general terms and conditions. In addition, as mentioned, Apple is also actively involved in the sense that in-app payments go through its payment system, and Apple thereby profits from players purchasing (illegal) loot boxes. This does not align with the concept of a merely passive hosting provider. It seems that Apple being liable for illegal gambling tucked away in a regular game on offer in its App Store, is not that far-fetched. We will however never know what the Belgian judge would have decided in the end, nor what the guidance of the Court of Justice would have been on the matters referred to it by the judge. Apple settled the case with the claimant. But the EU’s safe harbor for digital platforms may not be all that safe.
ROBBE VERBEKE Partner, Vlaemminck.law
For more information contact robbe.verbeke@vlaemminck.law +32 476 25 39 25
18 CJEU (Grand Chamber), 12 July 2011, C‑324/09, L’Oréal, ECLI:EU:C:2011:474, point 115. 19 CJEU (Grand Chamber), 22 June 2021, Joined Cases C 682/18 and C 683/18, Youtube and Cyando, ECLI:EU:C:2021:503, point 109. 20 CJEU (Grand Chamber), 12 July 2011, C‑324/09, L’Oréal, ECLI:EU:C:2011:474, point 116. 21 See https://developer.apple.com/app-store/review/guidelines/
IMGL MAGAZINE | SEPTEMBER 2025
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