EUROPEAN LAW IN PRACTICE
17th February 2024, this liability regime can be found in Regulation (EU) 2022/2065 of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (‘the Digital Services Act’ or ‘DSA’), and more specifically articles 4, 5, 6 and 8 of that Regulation. Prior to this point, the liability regime was enshrined in articles 12 to 15 of Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’ or ‘e-Commerce Directive’). Although there are certain differences between the wording of the Directive on electronic commerce and the Digital Services Act in this regard, the general outline is very similar. Therefore, case-law with regard to the liability regime of the Directive on electronic commerce is also applicable to the liability regime as set out in the Digital Services Act. The case at hand is still under the (old) provisions of the Directive on electronic commerce. The Directive on electronic commerce explicitly provides that it does “not apply to […] gambling activities which involve wagering a stake with monetary value in games of chance, including lotteries and betting transactions” . 5 Such an exclusion does not exist for the Digital Services Act. The referring court in the Belgian Apple case asked for clarification from the Court of Justice on whether the liability regime of the e-commerce Directive applies when the illegal content in question relates to gambling. Even if no longer relevant under the DSA, it should be pointed out that the liability regime of the e-commerce Directive has been considered in general as also encompassing liability for illegal content related to gambling. 6 This is the only
workable interpretation of the exclusion of gambling from the e-commerce Directive. The exclusion aims to make sure that there would be no unintended creation of a unified EU gambling market, with cross-border provision of services. Contrary to regular markets, this is not wanted for the gambling market, which are regulated on a national (or regional) level, with national licenses and compliance regimes. 7 The exclusion of gambling was not, however, intended to complicate and diversify the liability regime of internet service providers with regard to illegal content made available through their services. On the contrary: this liability regime can only function properly if it applies horizontally, to all types of illegal content. The fact that the DSA (which now incorporates this liability regime) does not have an exclusion for gambling, only further strengthens the argument that it was never the intention to apply different rules to illegal gambling content in this regard. Now, what does this liability regime entail? Essentially, it sets up a safe harbor for intermediate service providers. They are not liable for illegal content being made available using their services, provided that they are not actively involved and are not aware of the illegal content. Specifically with regard to “hosting”, the DSA provides that the safe harbor only applies on condition that the provider: (a) does not have actual knowledge of illegal activity or illegal content and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or illegal content is apparent; or (b) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the illegal content.
5 Art. 1 (5), d) of Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market 6 See e.g. Commission Staff Working Document on Online gambling in the internal market, 25 October 2012, accompanying document regarding the Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions “Towards a comprehensive European framework for online gambling”, SWD(2012) 345 final, point 4.1.: “While Article 1(5)(d) excludes gambling activities which involve wagering a stake with monetary value in games of chance, including lotteries and betting transactions from the scope of the directive the liability regime for information society service providers hosting or transmitting illegal content, Articles 12 to 15 of the Directive, also applies to gambling-related content.” 7 See e.g. CJEU 8 September 2009 (Grand chamber), C-42/07, Liga Portuguesa, ECLI:EU:C:2009:519.
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IMGL MAGAZINE | SEPTEMBER 2025
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