The Gambling Commission has issued guidance on whether offering a chance to participate in overseas gambling tournaments could be a criminal offence. But is the guidance right? Nick Johnson scrutinises the GC’s reasoning.
Who: Betting and gaming
Where: United Kingdom
When: December 2007
Law stated as at: 25 January 2008
The Gambling Commission has issued guidance on the practice of offering places at overseas poker tournaments as prizes in UK based competitions.
In the Commission's view, the offering of such a prize amounts to advertising of non-UK gambling. Unless the overseas tournament is held in the European Economic Area, in Gibraltar or in a white-listed territory, the Commission believes that the offering of such a prize would give rise to an offence under section 331 of the Gambling Act 2005.
Why this matters:
It has been relatively common for legitimate UK and EEA-based online gambling sites to promote their services by running online poker tournaments. The prizes for these have often involved guaranteed places at well-known casino tournaments in glamorous locations around the world.
Those operators will now have to think twice before seeking to tempt players with the prospect of a place at the Rio Poker Fest or the Australian Open poker tournaments. And media owners will need to think twice before taking ads and promotional features that include these references. If an offence under section 331 is committed, then it is committed not just by the advertiser but also by the media owner.
But is the Commission's view on this correct? "Advertising" for these purposes is defined under s.327 of the Act, which states:
"(1) For the purposes of this Act a person advertises gambling if-
(a) he does anything to encourage one or more persons to take advantage (whether directly or through an agent) of facilities for gambling,
(b) with a view to increasing the use of facilities for gambling, he brings them or information about them to the attention of one or more persons, or
(c) he participates in or facilitates an activity knowing or believing that it is designed to-
(i) encourage one or more persons to take advantage (whether directly or through an agent) of facilities for gambling, or
(ii) increase the use of facilities for gambling by bringing them or information about them to the attention of one or more persons."
Where the prize is a guaranteed place at a popular limited entry tournament, it is hard to see how offering it could be said to be done "with a view to increasing the use of facilities for gambling", except where a particular casino venue is also referenced. It is likely there would be the same number of participants in the tournament regardless of whether this place was or was not offered as a prize. So limbs (b) and (c)(ii) may be ruled out. Which leaves the question of whether the words "does anything to encourage" mean "does anything which encourages" or whether they in fact should be read as "does anything in order to encourage". Ie does the intention of the defendant count?
It may be argued that a narrow interpretation of these words is appropriate, so as to avoid them catching innocent editorial and artistic activities such as travel reviews, films or TV dramas that might include positive references to or scenes set in overseas casinos. But of course once could not rule out the possibility that a court would see particular prize offers as being intended to promote overseas gambling facilities.
Separately, in a development which somehow missed the front pages of the nationals, Tasmania has recently been added to the "white list" of permitted foreign territories.