EUROPEAN LAW IN PRACTICE
In addition, the recipient of the service cannot act under the authority or the control of the provider. 8 It should be noted that the European Commission has categorized the App Store as a hosting service that stores and disseminates information to the public at the request of recipients of its service. 9 2) Apps containing illegal gambling content Whereas the DSA refers to “illegal content”, the e-commerce Directive (applicable in this case) refers to the hosting of “illegal activity or information”. In one of its questions to the Court of Justice, the referring court asked for clarification as to whether, under the e-Commerce Directive, apps or software can be considered “information” and hence come within the scope of the specific liability regime foreseen by articles 12-14 of the e-Commerce Directive. It stands to reason that apps with illegal content would indeed be covered by the provisions of “illegal information” or “illegal activity” as used in the e-Commerce Directive. This has been generally considered to be true, for instance in preparation of the DSA, where it was stated that “a large array of online actors ranging from traditional electronic communications providers (e.g. internet service providers) to new online intermediaries (e.g. search engines, social media companies, software and game and cloud providers), potentially fall under the scope of the E-commerce Directive” and that the “E-commerce Directive liability rules apply to all ‘information society services’ ”. 10 The same approach was taken in a study made on behalf of the European Commission regarding the scope of the e-Commerce Directive, which refers to “Services that offer users the ability to store and
share different forms of files online (including video, audio, image, software and text documents)”. 11 The referring court also sought clarification regarding the nature of “illegal” content in this context. The e-Commerce Directive excludes, in principle, a generic type of activity, i.e. “gambling activities which involve wagering a stake with monetary value in games of chance, including lotteries and betting transactions” 12 . But at the same time gambling is only illegal if it is not properly licensed. It is a matter of national (or regional, as is the case in some Member States) law whether certain software should be regarded as illegal gambling or not. A loot box in a game can constitute illegal gambling in Belgium, and at the same time be perfectly legal in another Member State. It can be legal because it is licensed, but also because it is simply not considered to be a game of chance. In determining what is legal or illegal, there is no pan-European definition.
3) Assessment of Apple’s liability
The root of the matter is the question whether Apple can rely on the safe harbor provisions for a hosting provider. 13 This requires an assessment of the extent to which Apple had knowledge (or should be considered to have knowledge) of the illegal content in question. The referring Court also sought guidance from the Court of Justice on this issue. Should Apple (or any other service provider for that matter) take action as soon as it becomes aware of the existence of “loot boxes” in a game on the Belgian market, knowing that loot boxes may (but not necessarily) be considered games of chance? Or does such general information not suffice as actual knowledge of the illegal nature of the game in question?
8 Art. 6 of Regulation (EU) 2022/2065 of 19 October 2022 on a Single Market For Digital Services 9 Commission Decision of 25 April 2023 “designating App Store as a very large online platform in accordance with Article 33(4) of Regulation (EU) 2022/2065 of the European Parliament and of the Council” , C(2023) 2726 final, consideration (1). 10 Tambiama Madiega, “Reform of the EU liability regime for online intermediaries - Background on the forthcoming digital services act” , Euro- pean Parliamentary Research Service, PE 649.404 – May 2020, section 1.1 “Liability regime: Aim and scope of the directive” 11 VIR, “Hosting intermediary services and illegal content online - An analysis of the scope of article 14 ECD in light of developments in the online service landscape”, A study prepared for the European Commission DG Communications Networks, Content & Technology, Luxembourg, Publica- tions Office of the European Union, 2018, p. 13. 12 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 13 Under the e-Commerce Directive or the DSA
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