Online gambling payment restrictions A worlwide overview of (some) regulations

Transcription

1 i Gaming Asia Macau, February 2010 Online gambling payment restrictions A worlwide overview of (some) regulations Etienne Wéry, Attorney at law (Brussels and Paris Bars). Partner, Ulys (

2 Why such a restriction? For countries where online gaming is illegal, it is often impossible to effectively block and/or prosecute websites operators based in foreign countries without a presence on the national territory Easier to focus on providers based within the country Main providers concerned include: Internet Service Providers, such as access providers Payment providers/banks

3 Why such a restriction? In quite a lot of countries, Payment Services Providers and Internet providers liability could be triggered as soon as they have effective knowledge of illegal activities. The risk is to be assessed on a case-by-case basis but the risk is clearly higher for Banks holding illegal operators accounts As a matter of fact, prohibition and blocking systems are largely useless

4 Why such a restriction? For countries where online gaming is legal but controlled, putting pressure on payment service providers and/or banks is a convenient way to dry the illegal market : Gaming is (to a wide extend) about money If the gamer may not get his money when he wins, why would he play on an offshore site? If there is a legal offer in the country where he may get his money, he will probably play on legal sites At the end, it means more money for the state (tax)

5 Is it a world-wide tendency? Several methods for blocking payments in the gambling industry: Enactment of Legally Binding Regulations Official or unofficial directives to the attention of Banks Police investigations against online gambling operators Legally Binding Rulings delivered by the Judicature Legislations containing payment restrictions (non exhaustive list): Netherlands, Germany, France, Belgium, Sweden, Denmark, Norway, United-States, Australia, Turkey, Brazil, Israel, Singapore, Malaysia, China

6 Netherlands There is currently no legislation on blocking of financial flows in the Netherlands. Under Dutch Law (Betting and Gaming Act 1964), it is prohibited to stimulate participation in unlawful gambling services. In January 2008, Dutch Minister for Justice proposed that Dutch Banks be compelled to block online gambling payments. According to the Minister, facilitating payments between unlicensed gaming operators and customers is illegal pursuant to the Betting and Gambling Act. According to Betfair, the Minister has no authority to order Banks to stop processing payments from Dutch customers to unlicensed operators.

7 Germany The German Interstate Treaty on Gambling, entered into force at the beginning of 2008, prohibits Banks and Payment Services Providers from being involved in payments related to illegal games. In October 2009, one of the 16 German states (Schleswig-Holstein) that ratified the treaty requested its annulment Germany is under investigation by the European Commission due to the strict gaming monopoly and it is highly likely that the European Court of Justice would deliver a ruling condemning it Germany's current State Treaty on gambling expires on January 1 st, 2012 Online gambling market to be liberalised, at least in some sectors?

8 France The Draft Law is currently under scrutiny at the Senate Article 12 of the Draft Law provides for a prohibition of anonymous means of payment (issue for e-money) and authorizes only means of payment connected with a payment account (excluding prepaid cards) An amendment has been submitted in order to allow prepaid cards Pursuant to Article 51 of the Draft Law, the minister of Finances should ban payments to and from accounts held by illegal operators for a period of up to 6 months This obligation of blocking financial flows is laid down by Decrees, which have to be notified to the European Commission A potential infringement of the free movement of capital, enshrined in Article 63 of the Treaty on the functioning of the European Union

9 Belgium The Draft Law adopted December 3 rd, 2009 is aimed at creating a legal framework for all games of chance, including those on Internet Publication in the Belgian Official Gazette on February 1 st, Pursuant to Article 25 of the Draft Law, a Royal Decree of Execution should lay down technical requirements to secure online payments and define the means of payment authorized for online gambling Royal Decrees of Execution have not yet been enacted Pursuant to Article 37 of the Draft Law, the use of credit cards enabling their holders to have credit facilities is prohibited No additional restrictions on payments in the current Belgian legislation Entry into force by January 1 st, 2011 at the latest

10 Sweden At the end of 2008, an official study of the Swedish gambling legislation suggested a partial liberalization of the gaming market This study suggested a payment ban related to gambling transactions On the basis of this study, a proposal has been drafted by the Government After negative feedback and before a Draft Law could be presented to the Parliament, the Swedish Government accepted to change its first proposal Could the future Draft Law contain restrictions concerning payments? Is it the intention of the Swedish Government to protect the gambling monopoly establishing payment bans? Further information to be expected in 2010.

11 Denmark Danish government announced in April 2009 a liberalization of the market A provision was drafted in order to penalise Payment Institutions if they allow payments to and from operators without a Danish license The Draft Proposal was notified to the European Commission for scrutiny Denmark is required to reply to the Commission s views before adopting the legislation. If Denmark adopts the current text without taking into account the Commission s objections concerning payment restrictions, infringement proceedings could be launched The government expects to be able to present its proposal in Parliament early 2010 in order to open up the market in 2011

12 Norway A gambling-related payments ban was adopted by the Norwegian Parliament in December 2008 and will come into effect on 1 st June 2010 The Norwegian Payment Act classifies gaming related payments as unlawful accessory involvement in the exploitation of unlicensed games of chance Norway is not a member of the European Union, but as a member of the European Free Trade Association (EFTA), the principle of the freedom to provide services equally applies EFTA Surveillance Authority sent remarks for notification of the bill considering a breach of trade obligations Consequently, Norway seems to be under pressure to change its Law

13 United States The practice of online gambling is illegal in the US (except for horseraces) The Unlawful Internet Gambling enforcement Act was adopted in 2006 as a rider of Safe Port Act of 2006 Legislation prohibits gambling operators from accepting money transfers from unlawful Internet gambling from US customers Payments system providers must identify and block such monetary transfers (the latest cases: Visa and MasterCard) In March 2003, Antigua and Barbuda lodged a dispute resolution complaint with the World Trade Organization (WTO) to challenge US prohibition The WTO s panel rendered a decision in favour of Antigua US took no action to comply with the panel s decision

14 Australia Introduction of the Interactive Gambling Act (IGA) in June 2001 Providing an interactive gambling service to a customer physically present in Australia is an offence Under section 69A of the IGA, the Government may enact regulations providing that an agreement has no effect to the extent to which it provides for the payment of money for the supply of an illegal interactive gambling service The government, noting that the feasibility of a regulation on financial transactions is uncertain, has not made any regulations A report, commissioned by the Government, will be issued in 2010 containing proposals for a managed liberalisation

15 Turkey Online gaming is strictly illegal in Turkey Definition of gambling as a crime under Turkish Criminal Code A new legislation on Betting Activities was adopted in February 2007 Under Article 5 of this Law, providing financial sources for gambling activities by money transfer services in electronic environment is prohibited Regardless of whether or not service providers were aware of the nature of the relevant transaction Such heavy anti-gambling measures put the country at odds with recent developments in the European Union Legislation to be amended taking into account EU membership process?

16 Brazil General prohibition over all gambling activities established in Brazil Draft Law under scrutiny provides for an authorization of bingo and slot machines gambling in Brazil Another Draft law to impose an online gambling payments ban This Draft Law, currently under scrutiny by the Parliament, is the Brazilian equivalent of the US Unlawful Internet Gambling Enforcement Act Credit and Debit Card Institutions are likely to be prohibited from authorizing credit or debit card payments related to unauthorized games The Draft Law has a long way to go before being approved and could be subject to several modifications

17 Israel Israel gambling law (Israeli Penal Law, 1977) does not refer specifically to online gambling Common views of Israeli Courts is gambling prohibition applies to Internet Israeli police warned operators in 2006 that their activities were criminal In 2007, the major Payment Services Provider Neteller quit the Israeli market The police informed Credit Card Institutions that it deems their cooperation with operators offering online gambling as a criminal offense In November 2009, the Police took enforcement actions against illegal websites, 160 bank accounts related to gambling websites were frozen

18 Singapore The Common gaming house Act 1961 makes gaming in public illegal Gaming which takes place over the internet and offshore would not be interpreted as gambling in gaming house according to legal expert However, the police of Singapore have maintained that participation in online gaming or facilitation in relation to such participation is illegal There is no guarantee that Singaporean police will not prosecute customers, affiliates or operators There is no guarantee that the funds flow might not be subject to freezing under the anti-terrorist regulation 2002 and the 2006 guidelines to Financial institutions on the prevention of money laundering

19 Malaysia Common Gaming House Act 1953 makes gambling illegal (same wording than Singaporean legislation) Under the anti-money laundering Act 2002, it is an offense to become involved in any proceeds of unlawful activity There are currency control regulations providing that transfers of cash in excess of RM (= USD) must be done by a prescribed form from the Central Bank of Malaysia According to the Association of Banks in Malaysia: banks can block online gambling transactions or withdraw credit cards used by customers to make online transactions at betting sites

20 China Article 303 of the Chinese Criminal Code lays down the primary criminal law in China in relation to gambling In 2005, a Decree extended unlawful gambling to online gambling and covered any person who acts as an agent for online gambling operation There are currency controls in place in China but blocking online payments seems to be an impossible task Alternative solution: Internet-filtering software and firewall are used against online gambling operators China remains the world's largest untapped gambling market

21 Does it work? As a matter of fact, it is, for sure, not a bullet-proofed measure. States usually don t see this as a reason not to try it, because purpose is to put pressure in order to dry the market. It is seen a one measure, amongst others, to reach this goal. The productivity of the measure largely depends on the means of payment: Bank accounts. Credit cards (MCC 7995 code stands for Betting (including Lottery Tickets), Casino Gaming Chips, Off-Track Betting and Wagers). But, it does not make any difference between a legal and an illegal merchant. Others

22 Does it work? Technology is clearly quicker than the prohibition new means of payment, e-money, e-purse, prepaid (rechargeable) cards, Gift cards, e-vouchers, etc. In countries where Paper cheques are still in use, they are largely used Law is not always in favour of such restrictions : Free movement of capital under EU law Similar restrictions apply under both GATS and WTO laws

23 i Gaming Asia Macau, February 2010 Online gambling payment restrictions A worlwide overview of (some) regulations Etienne Wéry, Attorney at law (Brussels and Paris Bars). Partner, Ulys (