EUROPEAN LAW IN PRACTICE
game really a game of chance; and if so, 2) can Apple be held liable for the losses incurred by the player as the provider of the App Store on which the gaming software was acquired? With regard to the potential liability of Apple, the judge referred a number of questions to the Court of Justice of the European Union. 1 Loot box gambling A report on loot boxes under the Belgian law on games of chance caused quite a stir when it was released back in April of 2018. In this report, the Gaming Commission concluded that certain loot boxes satisfied all the requirements to be considered gambling. Since these loot box gambling products were not licensed, they were illegal, and publishers of games with loot boxes could be held liable. The Gaming Commission defines loot boxes as “the umbrella term for one or more game elements that are integrated into a video game whereby the player acquires game items either for payment or for free in an apparently random manner. These items can be very diverse, varying from characters or objects to emotions or special characteristics.” The Belgian law on games of chance of 7 May 1999 defines a game of chance as “ any game in which a stake of any kind is wagered, whether the loss of this stake by at least one of the players or a gain of any kind for at least one of the players or organisers of the game is the result, and in which chance plays even an incidental role in the outcome of the game, the determination of the winner or the determination of the amount of the winnings.” 2 As such, for a game to be a game of chance, there must be 1) a stake, 2) a game in which chance plays an element, 3) a potential gain of any kind. Loot boxes are often (and this was the case here) offered in the form of a game, whereby chance
determines the outcome (i.e. what the player receives from the loot box). Loot boxes can be purchased for money (as was the case here since the loot boxes were purchased through the Apple eco-system via their IAP payment system). It is therefore quite straightforward to establish that two-out-of- the-three criteria are indeed satisfied. One can debate whether a loot box really offers a type of (potential) gain to the player, if the prizes in question cannot be redeemed for anything of actual monetary value. However, it cannot be disputed that these loot boxes, and the prizes they have to offer, represent some sort of value to the players purchasing them. Testament to this reality is the fact that the claimant in this case spent almost €70.000 on them. As intangible as the prize may be, it does seem to represent value, and this is what the Gaming Commission also concluded in its 2018 report on loot boxes. It followed a judgment from the Council of State regarding a type of social casino website. 3 There too, the (casino) games on offer did not pay out any actual prizes or money. The players could only win more in- game currency, with which they could continue playing. The Council of State found that, under the provisions of the Belgian law on games of chance, this constituted a potential gain, and found that the social casino website in question was rightfully considered to be illegal by the Gaming Commission. Apple liability 1) Liability regime for intermediate service providers Having established that there was illegal gambling lurking within a regular gaming app that was provided on the Apple App Store, the next question then is whether Apple itself could be held liable towards the player. European Union law provides a specific liability regime for providers of (online) intermediary services. 4 Since
1 Request for a preliminary ruling from the Ondernemingsrechtbank Antwerpen, afdeling Antwerpen (Belgium) lodged on 24 January 2025 – LS v Apple Distribution International Ltd, Case C-47/25, Apple Distribution International 2 See art. 2, 1° of the law on games of chance 3 Raad van State (België) (Council of State (Belgium)), 29 October 2015, No 232.752. 4 I.e. mere conduit, caching, and hosting services, consisting of the transmission or storage in a communication network of information provided by a recipient of the service.
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IMGL MAGAZINE | SEPTEMBER 2025
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