EU court asked if Apple is liable for loot boxes

The Enterprise Court of Antwerp has asked for clarification from the Court of Justice of the European Union.
The Enterprise Court of Antwerp has asked for clarification from the Court of Justice of the European Union.

A plaintiff in Belgium argues that games in the App Store breach gambling legislation.

Belgium.- The issue of loot boxes in video games remains in the spotlight in Europe. Back in 2018, Belgium became the first country to regulate loot boxes that require players to spend real-world money to engage with random rewards, classifying them under gambling legislation. However, the mechanism remains prevalent.

The Enterprise Court of Antwerp has now asked for clarification from the Court of Justice of the European Union (CJEU) about whether the Apple App Store is liable for hosting video games that offer loot boxes. In a case brought by an iPhone user with a gambling problem, the Belgian court found that in-game loot boxes were available in games in the App Store in violation of Belgian gambling legislation.

The plaintiff claims that between January and November 2021, he spent €67,813 on loot boxes in Top War: Battle Game developed by Honk Kong’s River Game. Represented by Sirius Legal managing partner Bart van den Brande, he is seeking damages from Apple arguing that the tech giant should not host games that violate Belgian gambling legislation.

Apple argues that as a hosting service under the EU’s Electronic Commerce Directive (ECD), it is not liable for the content of apps since the directive clarifies that service providers are not liable for the information stored for service recipients. It also cites safe harbour provisions protecting companies that store and process information. However, the claimant argues that gaming is not part of the ECD’s scope.

The court has asked the CJEU to clarify whether gambling activities are excluded from the Electronic Commerce Directive’s liability protection and, if so, whether the concept of “gambling activities” should be defined under national or EU law. It has also asked whether software on the App Store falls under the concept of ‘information’.

The Electronic Commerce Directive was replaced by the Digital Services Act (DSA) in 2022, but the CJEU’s response could have implications for the current legislation as well.

Meanwhile, football clubs in Belgium have quickly found a way around new restrictions on gambling sponsorships. Kansspelcommissie, the national gambling regulator, has launched an investigation as multiple top-tier clubs appear to be taking advantage of loopholes to continue to promote gambling brands in a less direct way.

New measures imposed by Kansspelcommissie this month prohibit sports clubs from featuring sponsorship from gambling brands directly and from showing gambling logos on the front of kits or at a size of over 75 cm². Clubs opposed the measures, arguing that they would harm finances in the sport. However, sports teams can still form partnerships with gambling brands in indirect ways, for example via broadcast platforms, news and stats websites, foundations and support groups. 

Clubs in the UK and the Netherlands will be watching as the Kansspelcommissie conducts its investigation. A ban on gambling sponsorship in the Netherlands will come into effect from July. Meanwhile, clubs in the English Premier League have agreed a voluntary ban on front-of-shirt gambling sponsorship from 2026-27.

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