Transcript Document
Advertising for remote gaming
There is no such thing as bad publicity…
There is only « illegal » publicity
Thibault Verbiest
Attorney at the Bars of Paris and Brussels
European Gambling Briefing
25 -26 April 2005
[email protected]
Law of :
• New Technologies • Intellectual Property • Media and Entertainment • Commercial Law •
EU Regulatory Framework
for commercial communications
E-commerce Directive
Directive privacy & electronic
communications
Part of Telecom package
All online activities
Notion of “commercial
Cookies & Spyware
communication”
General obligations
Imposes OPT-IN regime
Safe harbours &
liability
1. Am I allowed to advertise ?
Two basic principles
What is illegal offline, should be illegal online
In most Member states it is only allowed to advertise
IF the gaming activity is legal
Schindler case
Bacardi case (TV)
Consumer protection legislation
2. Is the gaming activity legal ?
National law: (see annexes)
General principle:
“the organization of games is illegal unless
authorized”.
Exceptions : restrictive application of criminal law
find the loophole: P2P, betting exchange & Dutch Betfair cases
Remote gaming is a de facto cross-border service
Consider international aspects
Malta
2004 Remote Gaming Regulations
4 licence classes for casino, lotteries, betting, poker and ‘hosting’
LGA: Three-step application process (5-8 weeks)
Favourable tax regime under ITC structure
ITC must provide (gaming) services on cross-border basis
Advertising (art. 60): allowed within the following limits
(a) remote gaming promotes or is required for social
acceptance, personal or financial success or the resolution of
any economic, social or personal problems;
(b) endorsements by well-known personalities that suggest
remote gaming contributed to their success;
(c) is specifically directed at -18y;
(d) exceeds the limits of decency.
3. Does European law allow the cross-border
provision and promotion of gaming services?
no : EC Law not applicable
E
C
art.49: freedom to provide services
1)economic activity ?
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Restrictions may be imposed, provided that
3) art.49 not discriminatory ?
4) art. 46 justified by the Treaty ?
Yes : 2) goods or service ?
5) necessary and proportionate ?
art.30
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The Internal Market Strategy for Services
Remove all remaining barriers in the Internal Market
Directive 98/48 : e-gaming is an information society service
E-gaming regulation must be notified (Belgium, Denmark?)
Electronic commerce Directive : Internal Market clause
Member States may not impose additional obligations
Proposal for a Directive on Services in the Internal Market
Create a real Internal Market – Home Country control
E
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P
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ECJ (1): From Gambelli to Placanica and...
Gambelli & Lindman
Decisions of 6 and 13 November 2003 confirm the
standing jurisprudence, but concrete conditions are
imposed:
Presence
of a de facto consistent gaming policy;
Public grounds may not be used to protect market from
competition;
Country of Origin Principle should be considered;
Clear and present risks;
Statistical or other evidence.
ECJ (1): Post-Gambelli case-law
Post-Gambelli case-law is very diverging, sometimes conflicting
Decisions of Supreme and Constitutional courts in Finland, the
Netherlands, Sweden, Belgium, Germany and Italy
Netherlands: Summary proceedings vs main proceedings
Germany:
BGH: 1 April 2004: questions the legality of German gaming policy in
light of Gambelli
BVerG: 26 August 2004 – 15 December 2004: Gambelli did change
something
Constitutional Court: art. 12 case: July 2005?
Norway: EFTA case
Italy: -“Bruno Corsi” case –> Placanica case
- Consiglio di Stato 22 February 2005
- EC competition law: Sisal & Lottomatica
Need for EU clarification?!:
New jurisprudence of the European Court of Justice: Placanica and....
European Commission
EU Commission (2) Electronic Commerce Directive
To promote the development of e-commerce in the Internal Market:
Free provision of information society services and the internal market
clause (Internal market clause – art. 49)
Article 1.5 excludes “gambling activities which involve wagering a stake
with monetary value in games of chance, including lotteries and betting
transactions.”
Remarks
Scope
Free
& considerations:
of the exclusion: Spain?
games? Promotion of « play for fun » landing pages
Remote
gaming = information society service
Notification: Denmark: article 10 of March 2003 Act?
Review
every two year
First Report on the application of the electronic commerce Directive
July 2005?
EU Commission (2) - e-commerce Directive
First report e-commerce (21 November 2003)
“Online gambling, which is currently outside the scope of the
Directive, is a new area in which action may be required because
of significant Internal Market problems - see for example Case C243/01s of the European Court of Justice (ECJ press release
CJE/03/98), concerning criminal proceedings in Italy against
persons collecting Internet bets on behalf of a bookmaker legally
licensed in the UK. The Commission will examine the need for
and scope of a possible new EU initiative. In addition, the
Commission is examining a number of complaints it has received
concerning cross-border gambling activities. “
Scope of the exclusion: forum shopping & distortions
Regulation in new Member States (Malta)
Complaints: Denmark, Sweden, the Netherlands, Belgium,
Germany, Greece, Finland, France, ?
EU Commission (2) – Service Directive
Proposal for a Directive on Service in the Internal
Market (Jan 2004)
Create a real Internal Market for services,
including gambling services
Provision/promotion of Services
Application of the country of origin principle (Internal
Market Clause)
Exception for “sensitive areas”, including gambling services
President Barroso March 2005 statements on
carve out for health and services of public interest
EP Report of April 2005
4. What about the rights of the consumer-gambler?
General principle :
In most member states it is not illegal to
participate in ‘illegal’ games >< Poland, Germany
The Netherlands:
website Department of Justice
Proposal for a new Service Directive
ECJ Lindman case (13.11.2003)
Conclusion?
National authorities easily grant competence
and apply national law
Under national law, most advertising will be
illegal unless license was granted (?)
Skill your creativity – find the loopholes?
Guerilla
advertising: Beckham ball
Sponsorship?
Press coverage?
Freedom of speech? media and blogs
Sponsorship
Press coverage
No
commercial communication
Freedom
of press (ECHR)
“Schöne
Wetten” case (Ger. Die Welt)
Freedom of Speech - Blog
Freedom of Speech
Guaranteed by International public law and national
constitutions
Linked to freedom of press (internet?)
USA:
Article 10: EU Convention for Human Rights
Tropical Paradise v. Discovery Communications
Casino City case – Ruling 15.02.2005
Limitation by formal Act: precise restriction - Malta
Protect general interest
Necessary in a democratic society
“commercial” speech & access to information?
MEMBER STATE
Regulation
(annexes)
The Netherlands
The 1964 Act on games of chance :
Promotion of games of chance in the Netherlands without a license is
forbidden.
Stichting Reclame Code:
Code of Conduct for casino games and gaming machines (RKC)
Purposes may not be other than a responsible participation and to
incite one’s interest
May not stress the possibility of winnings
May not give the impression that gaming is without risk
May not be directed at vulnerable groups or minors
May not be displayed at events of venues frequently visited by
minors or other vulnerable groups
New advertising code for State monopolies 31 March 2005?
The Netherlands - Jurisprudence:
Summary
proceedings
Exclusive rights De Lotto and Holland Casino
confirmed
Supreme Court decision of 18 Feb. 2005
Main proceedings:
Arnhem: interlocutory judgment of 2.6.2004
Proof of a consistent gaming policy
Foreign operators must adopt online verification systems to block
access to their website from the Dutch territory?
Lindman?
Belgium:
Casino Games , 1999 Casino Act
Promotion of non-authorized games of chance is an offence, even
when the operation is established outside Belgium (§ 64, 1999 Casino Act)
Lotteries
Decision of the Constitutional
Court (March 2004).
National Lottery Act of 19 April 2002:
Monopoly to the National Lottery
Modification of 24 December 2002: notification Directive 98/48
Act of 31 December 1851 on lotteries: charity and welfare
Article 23, 10° of the 1991 Consumer Protection Act
Publicity that incites the hope to win a product, service or other
advantage by chance is forbidden:
Exclusion: legally authorized lotteries
No publicity for authorized
games of chance and casino games
France Old regulatory framework
The regulatory framework
Games of chance: Act of 12 July 1983
Casino operations: Act of 15 July 1907
Lotteries: Act of 21 May 1836
Application in an online environment ?
Casino and notion of “fixed establishment”
Online gaming activities are subject to this legislation, thus a
license is required
Yahoo-case: universal competence
France – Publicity :
Lotteries: article 4:
Publicity for unauthorized lotteries is forbidden, irrespective
of the media used
Casino games and games of chance:
No specific dispositions for publicity
General Regime of the French Criminal Code (§ 121-6,§
121-7)
“He who knowingly contributes to a criminal offence
shall be punished as if he was the author of the offence”
Enforcement on cross-border provision/promotion
Dellner case (Cass. 22.05.1997)
Trucy Report on the French gaming policy!
Germany
Federal Criminal Code, StGB: § 284,285 and 287
Organization of” and “participation in” is considered as
a criminal offence
Advertising: § 284, 4
Lotteries: § 287 (no participation)
Länder (16) :
Competence to derogate from the general prohibition and
adopt their proper gaming policy & issue license
Staatsvertrag (State Treaty) of July 2004: article 7: public
offer < demand
Private operators with a former DDR (GDR) Licence
Germany
A lot of case law and ongoing litigation:
World Cup 2006?
BGH: 1 april 2004: questions the legality of German gaming
policy in light of Gambelli (Schöne Wetten)
BVerG: 26 August 2004 – 15 December 2004:
Gambelli did change something
Constitutional Court: art. 12 case:
“landmark decision” by July 2005?
Urge authorities not to be too restrictive
Italy
Italian Criminal Code: articles 718-722 :
The “organization of” and “participation in” games of
chance are criminal offences
Publicity for casino games or games of chance is not
allowed
Act n° 401 of 13 December 1989 :
Monopoly for CONI and UNIRE (sports competitions)
If you have a license, you can promote your activities
Final decision in the Gambelli case still pending
Case-law
Bruno Corsi -> Placanica case
Stanleybet DTC: Consiglio di Stato 22 February 2005
Competition law: Sisal & Lottomatica
Spain
Untill 1975: the Gaming sector was centralized
Spanish Constitution of 1978:
The decentralized Comunidades Autónomas (CCAA 19) have an almost
exclusive competence in the field of gaming activities
Comunidad Autónoma de Aragón: Article 12 of the Act of 28 June 2000
Publicity for games is forbidden, irrespective of the media used
Government has the competence to adopt a Decree derogating
from this prohibition
Decree n° 159/2002 of 30 April 2002: commercial lotteries
and games
Andalucia: VCBet – Equiniela
Loterias y Apuestas del Estado (LAE)
Exclusive competence for games that exceed the scope of one CA
LAE claims the monopoly for remote gaming
Portugal
Decree-Law 422 of 2 December 1989 on
casino games
License is required, 6 requirements
Advertising for gambling or casino games is forbidden
Advertising for venues on which casino games are organized
together with other services (restaurant,
shows, etc.) is allowed
Advertising Code
Approved by Decree-law No. 330 of the 23 October 1990
Prohibits advertising of games of chance (§ 21)
Anomar case
United Kingdom –
Current framework
§ 42 of the Gaming Act 1968 and Guidelines
Gaming Board
Advertising is possible but restricted
Classified advertisement: directed at a certain public
Factual information: name, address, logo and limited details about
gaming facilities
Newspapers and magazines: A4 size
Online: passive website is not covered by the Guidelines, others OPT IN
Television: Independent Television Commission (ITC): Advertising Code
Advertising Standards Authority: CAP Code
Lotteries
Lotteries and Amusements Act 1976 and Lotteries Regulations 1993
National Lottery Act 1993
Schindler - Millions2000 case
United Kingdom –
Gambling Act 2005
The UK an E-gaming Hub?
What is the status? Secondary legislation, Tax & Codes of Conduct
Advertising is broadly defined, including sponsorship
Advertising for licensed gaming activities is allowed, particular rules
Offence to promote or advertise illegal gambling
Territorial application: remote gambling & remote advertising
Cross-border advertising? From and towards UK? EEA?
Delegation towards the Secretary of State and Gambling Commission
(Advertising Code of Practice - article 23)
Denmark
National Internet Gaming Strategy, 18 June 2001
Maintain control over the gaming market and protect the monopoly
ISP’s block access to foreign sites
Blocking credit card payments, PSP
Regulate internet gaming
Rigid monitoring and certification process for licensed operators
International cooperation
Ideas or reality?
New Gaming Act (Law no 204 of 25 March 2003)
Article 10: provision and promotion of foreign games
Ladbrokes article 49 procedure
Notification?
Formal complaint: Commission inquires into Danish restrictions on sports
betting (30 March 2004)
Commission decides to take further action
Sweden
1999 Casinos Act
1994 Lotteries Act, as modified:
August 2002: online gaming regulated
Lotteries communicated by means of electromagnetic waves (§21)
Publicity, §38:
“It is not permitted, in commercial operations or otherwise, for the
purpose of profit to promote participation in unlawful lotteries arranged
within the country or in lotteries arranged outside the country”
“License is required and advertising is subject to the 1995 Marketing
Act and Code of Conducts”
Non-profit associations
Administrative Supreme Court (Regeringsrättens) 26 October 2004
Malta
2004 Remote Gaming Regulations
4 licence classes for casino, lotteries, betting, poker and ‘hosting’
LGA: Three-step application process (5-8 weeks)
Favourable corporate tax regime under ITC structure (4.17%)
ITC must provide (gaming) services on cross-border basis
Advertising (art. 60): allowed within the following limits
(a) remote gaming promotes or is required for social
acceptance, personal or financial success or the resolution of any economic,
social or personal problems;
(b) endorsements by well-known personalities that suggest
remote gaming contributed to their success;
c) is specifically directed at -18y;
(d) exceeds the limits of decency.
Greece
Blanket prohibition under Act 3037/2002
encompasses electromechanical and electronic
games (<-> EU complaint)
Article 4 of Law 2206/1994 forbids the exploitation of
a casino without a license (12 licenses after public tender)
OPAP mainly opposes internet betting on grounds of
Law 2433/1996 which prohibits their operation as
well as their advertising