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ICLG The International Comparative Legal Guide to: Gambling 2017 3rd Edition A practical cross-border insight into gambling law Published by Global Legal Group, with contributions from: Arthur Cox Jones Walker LLP Brandl & Talos Attorneys at law Khaitan & Co Carallian Melchers Law Firm Cuatrecasas, Gonçalves Pereira Miller Thomson LLP DLA Piper UK LLP MME Legal | Tax | Compliance Gaming Legal Group Montgomery & Associados Hassans International Law Firm Nestor Nestor Diculescu Kingston Petersen Herzog Fox & Neeman Law Office Portilla, Ruy-Díaz y Aguilar, S.C. Hinckley, Allen & Snyder LLP Rato, Ling, Lei & Cortés – Advogados Horten Law Firm Sbordoni & Partners HWL Ebsworth Lawyers Sirius Legal International Masters of Gaming Law
The International Comparative Legal Guide to: Gambling 2017
Editorial Chapter:
1 Shaping the Future of Gaming Law – Michael Zatezalo & Jamie Nettleton,
International Masters of Gaming Law 1
General Chapters:
2 2016: Post-Brexit Upheaval and Raising the Compliance Bar – Hilary Stewart-Jones,
Contributing Editor
DLA Piper UK LLP 3
Hilary Stewart-Jones,
DLA Piper UK LLP
3 Update on Fantasy Sports Contests in the United States – Changes Over the Past Year and What
Sales Director May be Ahead in the Future – Mark Hichar, Hinckley, Allen & Snyder LLP 6
Florjan Osmani
Account Directors
Oliver Smith, Rory Smith Country Question and Answer Chapters:
Sales Support Manager 4 Australia HWL Ebsworth Lawyers: Anthony Seyfort 16
Paul Mochalski
5 Austria Brandl & Talos Attorneys at law: Thomas Talos & Nicholas Aquilina 21
Editor
Tom McDermott 6 Belgium Sirius Legal: Bart Van den Brande 27
Senior Editor 7 Brazil Montgomery & Associados: Neil Montgomery & Helena Penteado
Rachel Williams
Moraes Calderano 32
Chief Operating Officer
Dror Levy 8 Canada Miller Thomson LLP: Danielle Bush 36
Group Consulting Editor 9 Denmark Horten Law Firm: Nina Henningsen 43
Alan Falach
10 Dutch Caribbean Gaming Legal Group & Carallian: Bas Jongmans & Dick Barmentlo 49
Group Publisher
Richard Firth 11 Germany Melchers Law Firm: Dr. Joerg Hofmann & Dr. Matthias Spitz 57
Published by
Global Legal Group Ltd. 12 Gibraltar Hassans International Law Firm: Peter Montegriffo QC & Nyreen Llamas 63
59 Tanner Street
London SE1 3PL, UK 13 Greater Antilles Gaming Legal Group: Bas Jongmans & Josefina Reyes Santana 70
Tel: +44 20 7367 0720
Fax: +44 20 7407 5255 14 India Khaitan & Co: Ganesh Prasad & Sharad Moudgal 83
Email: info@glgroup.co.uk
URL: www.glgroup.co.uk 15 Ireland Arthur Cox: Rob Corbet & Chris Bollard 89
GLG Cover Design 16 Israel Herzog Fox & Neeman Law Office: Yehoshua Shohat Gurtler 95
F&F Studio Design
17 Italy Sbordoni & Partners: Stefano Sbordoni 100
GLG Cover Image Source
iStockphoto 18 Macau Rato, Ling, Lei & Cortés – Advogados: Pedro Cortés &
Printed by Manuel Moita Júnior 105
Ashford Colour Press Ltd
December 2016 19 Malta Gaming Legal Group: Bas Jongmans & Stephen Dullaghan 110
Copyright © 2016 20 Mexico Portilla, Ruy-Díaz y Aguilar, S.C.: Carlos Fernando Portilla Robertson &
Global Legal Group Ltd. Ricardo Valdivia González 118
All rights reserved
No photocopying 21 Netherlands Gaming Legal Group: Bas Jongmans 123
ISBN 978-1-911367-26-0 22 Portugal Cuatrecasas, Gonçalves Pereira: Gonçalo Afonso Proença 129
ISSN 2056-4341
23 Romania Nestor Nestor Diculescu Kingston Petersen: Cosmina Simion &
Strategic Partners
Ana-Maria Baciu 135
24 Switzerland MME Legal | Tax | Compliance: Dr. Andreas Glarner &
Dr. Luka Müller-Studer 142
25 United Kingdom DLA Piper UK LLP: Hilary Stewart-Jones 148
26 USA – Alabama Jones Walker LLP: Kirkland E. Reid 155
27 USA – Florida Jones Walker LLP: Marc W. Dunbar 160
28 USA – Louisiana Jones Walker LLP: J. Kelly Duncan 164
29 USA – Mississippi Jones Walker LLP: Thomas B. Shepherd III 168
30 USA – Texas Jones Walker LLP: Nicole Duarte 172
Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720
Disclaimer
This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.
Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.
This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified
professional when dealing with specific situations.
WWW.ICLG.CO.UKChapter 15
Ireland Rob Corbet
Arthur Cox Chris Bollard
Section 120 of the Finance Act 1992 defines an amusement machine
1 Relevant Authorities and Legislation
as “[a] machine which (a) is constructed or adapted for play of
a game, and (b) the player pays to play the machine, and (c) the
1.1 Which entities regulate what type of gambling activity outcome of the game is determined by the action of the machine,
in your jurisdiction? and (d) when played successfully, affords the player an opportunity
to play again without paying”.
The Revenue Commissioners (which is the Irish tax authority) award Pursuant to Sections 120–129 of the Finance Act 1992, every
licences to bookmakers (both online and offline) and remote betting amusement machine made available for play must be licensed and
intermediaries. They also police the provision of such services to there must be a permit for the public place concerned. Sections 84
the public in the absence of a licence. They are also charged with and 85 of the Finance Act 2002 provide that excise duty must be
collecting betting taxes. paid on the issue and renewal of a permit and the applicant must
In order to obtain a bookmakers or betting intermediary licence, produce a tax clearance certificate.
the applicant (or the relevant officers of the applicant where the The business of bookmaking (including remote bookmakers and
applicant is a company) must first obtain certificates of personal betting intermediaries) is permitted where a licence has been issued
fitness. The Department of Justice and Equality is charged with under the Betting Act 1931 (as amended).
awarding certificates of personal fitness to overseas applicants. The operation of the National Lottery is regulated by the National
Applicants who are based in Ireland may apply for a certificate of Lottery Act 2013.
personal fitness from a Superintendent of An Garda Síochána (the
The operation of tote (“pari-mutuel”) betting is governed by the
national police force).
Totalisator Act, 1929.
Small lotteries (which must be carried out for a charitable purpose)
may be carried out under a permit granted by a Superintendent of An
Garda Síochána or a licence granted by a District Court. 2 Application for a Licence and Licence
The licensing of “Amusement Halls and Funfairs” may be Restrictions
determined by a local authority or local District Court. Certain very
limited (and low-stakes) gaming may take place in these venues
2.1 Who can apply for a licence to supply gambling
with the appropriate licence.
facilities?
The Revenue Commissioners also licenses low stakes “Gaming
Machines”. The 20-year licence to operate the National Lottery is granted to one
The National Lottery is regulated by the Office of the Regulator of operator (currently, Premier Lotteries Ireland Limited).
the National Lottery. Any individual or company may apply for a betting licence, remote
betting licence or remote betting intermediaries licence. There is no cap
1.2 Specify all legislation which impacts upon any on the number of licences which may be granted, though the licences
gambling activity (including skill, prize competitions are issued at the discretion of the Revenue Commissioners. Where
and draws, fantasy, egaming and social games), and the applicant is a company, the “relevant officers” of that company
specify in broad terms whether it permits or prohibits will make the application on behalf of the company. They will also be
those activities.
required to obtain appropriate certificates of personal fitness and tax
clearance certificates in order to make the licence application. There
Gaming (such as casino games) and lotteries (with the exception is no restriction in relation to the location of applicants for remote
of the National Lottery) are regulated (and, broadly speaking, betting and remote betting intermediary licences.
prohibited) by the Gaming and Lotteries Acts 1956 to 2013.
Licences for small lotteries carried out primarily for charitable
A prohibition on slot machines originally contained in the 1956 Act purposes may be awarded by the District Court to individuals.
(section 10) was repealed in 1970. Section 43 of the Finance Act In practice, the individuals normally apply for and on behalf of a
1975 (as amended) provides that a person who makes a gaming charitable organisation.
machine available for play must have a gaming machine licence for
Licences to set up, maintain and operate totalisators are granted
each gaming machine. Slot and gaming machines fall within the
under the Totalisator Act 1929. Tote Ireland Limited, a wholly
1956 Act as gaming machines.
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© Published and reproduced with kind permission by Global Legal Group Ltd, LondonArthur Cox Ireland
owned subsidiary of the state body Horse Racing Ireland, currently Casinos/Private Members Clubs
operates a totalisator, under licence, at racecourses nationwide. The scope of the Gaming and Lotteries Act, 1956 excludes private
Bord na gCon (the national greyhound board) is licensed to operate arrangements, and this has given rise to the operation of private
a totalisator at greyhound tracks. members’ clubs as casinos/card clubs, which the operators argue
fall entirely outside the gaming licensing regime. Aside from the
2.2 Who or what entity must apply for a licence or requirement to become a member, a process that is not standardised,
authorisations and which entities or persons, the opening hours, age restrictions and general operation of such
Ireland
apart from an operator, need to hold a licence? Are clubs are not regulated. Private members’ clubs are liable for VAT
personal and premises licences needed? Do key and must register with the relevant authority under anti-money
suppliers need authorisation? laundering legislation.
Amusement Halls
Bookmakers operating from a “bricks and mortar” shop must also
In order to be fully licensed, an amusement hall owner that operates
obtain a certificate of registration of premises.
both amusement machines and gaming machines should:
Presently, there is no need for “key suppliers” (including suppliers
(a) operate in a local authority area where a resolution under
of software) to obtain a licence or other authorisation.
Section 13 of the Gaming and Lotteries Act 1956 has been
passed;
2.3 What restrictions are placed upon any licensee? (b) restrict players of gaming machines to those aged 16 and
over;
The licence restrictions depend on the nature of the licence in (c) locate amusement machines and gaming machines in
question. physically separate areas;
The operator of the National Lottery will be subject to the licence (d) refrain from selling alcohol; and
terms which they have agreed with the government. These licence (e) hold the following licences:
terms may be viewed on the website of the Regulator of the National (i) Amusement Machine Permit;
Lottery. The licence contains (among other things) player protection (ii) Amusement Machine Licence for each amusement
mechanisms and provisions governing unclaimed prizes as well as machine;
the establishment of the National Lottery Fund. (iii) Gaming Licence; and
Bookmakers and remote betting intermediary licences may be (iv) Gaming Machine Licence for each gaming machine.
revoked by the District Court (on the application of the Minister for
Justice and Equality) in certain circumstances set out in section 16
of the Betting Act 1931 (as amended), primarily where the licence 2.5 Please give a summary of applicable time limits and
potential for expiry, review revocation and nullification.
holder or relevant officers of the licence holder have their certificates
of personal fitness revoked.
See question 2.4 for the licence application timetable.
The opening hours of bookmaker’s shops are governed by statute.
Bookmaker’s shops may not offer any goods or services aside from Licences for bookmakers, remote intermediaries and licensed
bookmaking services (with certain, very limited exceptions, such as bookmaker’s premises will be issued for up to 24 months ending
the sale of newspapers, non-alcoholic drinks, confectionary or fruit). on 30 November the following year (for bookmakers) or 30 June
There are other restrictions on the operation of bookmaker’s shops (remote bookmakers and remote intermediaries). Annual renewal
in the Betting Act 1931 – for example, the licence holder may not fees are calculated on the turnover of the bookmaker/intermediary.
permit overcrowding or loitering in the shops.
Licensed bookmakers may not accept bets of an amount less than 2.6 By product, what are the key limits on providing
€0.06. There is a total prohibition on making a bet or engaging in a services to customers? Please include in this answer
betting transaction with a person under the age of 18 years. the material promotion and advertising restrictions.
Retail Bookmakers: Section 20(1) of the 1931 Act prohibits a
2.4 What is the process of applying for any gambling
retail bookmaker from setting up or maintaining in or outside
licence or regulatory approval?
his shop “any attraction (other than the mere carrying on of his
business of bookmaking) which causes or encourages or is likely
Remote Bookmakers/Remote Betting Intermediaries
to cause or encourage persons to congregate in or outside such
The process for applying for a remote bookmaker licence or a premises”. Section 20(3) contains a prohibition on a bookmaker
remote betting intermediary licence is almost identical. from “proclaim[ing] or announc[ing] or permit[ting] any other
First, the applicant must place an advertisement in two national person to proclaim or announce in such premises to the persons
newspapers. At least 14 days later, applications for certificates of there present the terms or odds on or at which he is willing to take
personal fitness must be made by at least two relevant officers of bets in relation to any particular race, match, or other contest, or
the applicant. Within 21 days of the certificates of personal fitness in respect of any competitor in any such contest”. Section 20(4)
issuing, the applicant must submit its licence application. In parallel prohibits a retail bookmaker from exhibiting (or permitting to be
to this process, the applicant will be required to apply for a tax exhibited) in or outside his shop (or which is visible from the street)
number from the Revenue Commissioners, obtain a tax clearance “any lists or statements of the terms or odds on or at which he is
certificate and register with the Revenue Online Service for the willing to take bets in relation to any particular race, match, or
payment of betting duties. other contest, or in respect of any competitor in any such contest, or
Lottery Licences lists or statements of the competitors entered for or withdrawn from
or taking or likely to take part in any such contest, or statements of
Small lottery licences can be issued by the District Court subject to
facts, news, or forecasts in respect of any such contest, or any other
a prior application and oral hearing.
incitement or inducement to bet”.
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© Published and reproduced with kind permission by Global Legal Group Ltd, LondonArthur Cox Ireland
Remote Bookmakers/Remote Betting Intermediaries: The under the age of 18. See question 2.6 above regarding advertising
Broadcasting Commission of Ireland is an independent statutory and promotion restrictions.
organisation responsible for some of the key aspects of television and
radio services in Ireland. Its General Commercial Communications
2.9 How do any AML, financial services regulations or
Code (the “Code”) addresses standards with regard to all forms payment restrictions restrict or impact on entities
of commercial communication; advertising, sponsorship and supplying gambling? Does your jurisdiction permit
teleshopping. Section 8.8 of the Code provides that commercial virtual currencies to be used for gambling and are
Ireland
communications that seek to promote services to those who want to they separately regulated?
bet are acceptable.
Section 8.8 also provides that such communications may contain the The Fourth Anti-Money Laundering Directive is due to be
address of the service provider and factual descriptions of the services implemented in Ireland in 2018. Draft national legislation is not
available but may not contain anything which could be deemed to available at the time of writing. Persons who effectively direct a
be an “encouragement to bet”. Information detailing special offers, private members’ club at which gambling activities are carried on,
discounts, inducements to visit any betting establishment (including are regulated by the Department of Justice and Equality Anti-Money
online), references to betting odds available or any promotional Laundering Compliance Unit (“AMLCU”) but only in respect of
offer intended to encourage the use of services of this nature are those gambling activities. Virtual currencies are not currently
not permitted. separately regulated in Ireland.
The Advertising Standards Authority (“ASAI”) for Ireland is an
industry body which publishes and monitors compliance with 3 The Restrictions on Online Supply/
advertising standards. In March 2016, the ASAI updated its Code Technology Support/Machines
of Standards for Advertising and Marketing Communications in
Ireland to include, for the first time, a chapter on guidelines for
advertising in the gambling industry. 3.1 Does the law restrict, permit or prohibit certain online
Casinos: Casinos are illegal if they promote or provide facilities activity and, if so, how?
for any kind of gaming that is deemed “unlawful gaming” for the
purposes of the 1956 Act. Section 4(1) of the 1956 Act provides The remote provision of: (i) betting services; or (ii) betting
that “unlawful gaming” includes gaming in which by reason of the intermediary services is regulated and licensed by the Betting Act
nature of the game, the chances of all the players, including the 1931 (as amended). In the context of that law, “remote” is defined
banker, are not equal, or gaming in which any portion of the stakes as “any electronic means” and it includes the internet, telephone
is retained by the promoter or is retained by the banker otherwise and telegraphy (including wireless telegraphy). Those wishing to
than as winnings on the result of the play. provide remote bookmaking services to Irish customers or betting
intermediary services to bookmakers with Irish customers will
Lotteries: The 1956 Act prohibits the promotion of unlicensed
need to obtain a licence in order to do and will also need to pay the
lotteries.
appropriate rate of betting duty or betting intermediary duty.
For general gambling products (i.e. casino or lottery-style games),
2.7 What are the tax and other compulsory levies?
the 1956 Act has full application albeit that it has not been updated to
take account of internet gambling. It is quite common for operators
The initial licence fee for remote bookmakers and remote betting who are lawfully licensed in other jurisdictions to offer online
intermediaries is €10,000. gambling products to Irish customers provided that such contracts
The cost of renewing a licence is based on turnover and ranges are not governed by Irish law. Operators should also be careful in
from €10,000 up to a maximum of €500,000 (for bookmakers with respect of the prohibitions in the 1956 Act regarding the promotion
an annual turnover of over €500 million) or €200,000 for remote and advertising of unlawful gambling products.
betting intermediaries with an annual turnover of €500 million or The Irish regulatory regime that applies to online betting and betting
more. intermediary services is designed primarily as a tax collection
Remote bookmakers must also pay betting duty of 1%. Remote mechanism. Therefore, Irish law does not (for example) currently
betting intermediaries are subject to a betting intermediary duty regulate software providers or provide extensive player protection
which is currently 15% of “commission charges”. “Commission mechanisms.
charges” are defined in the Finance Act 2002 (as amended) as “the
amounts that parties in the State to bets made using the facilities of
3.2 What other restrictions have an impact on online
a remote betting intermediary are charged, whether by deduction supplies?
from winnings or otherwise, for using those facilities”.
Gaming operators who are licensed overseas but taking play from Section 32A of the Betting Act 1931 (as amended) deals with the
Irish customers are likely to be subject to value added tax (“VAT”) certain unlawful conduct and specifically prohibits persons from
pursuant to the VAT Directive (Council Directive 2006/112/EC) and providing facilities to assist unlicensed bookmakers or betting
its implementing regulations (282/2011/EU). eGaming services intermediaries. In particular, it is unlawful to provide a service which
are currently taxable in Ireland at a rate of 23% on a point of would enable an unlicensed bookmaker or betting intermediary to
consumption basis. have access to or use any internet address or any internet domain
for the purpose of their carrying on a remote bookmaking operation.
2.8 What are the broad social responsibility Similarly, it is unlawful to enable any person to have access from
requirements? Ireland to any internet address, internet domain or particular facility
within such domain for the purpose of that person entering into any
There are various offences in the Betting Act 1931 (as amended) and transaction (including the making of a bet) with the second mentioned
the Gaming and Lotteries Act 1956 restricting gambling with minors
ICLG TO: GAMBLING 2017 WWW.ICLG.CO.UK 91
© Published and reproduced with kind permission by Global Legal Group Ltd, LondonArthur Cox Ireland
person in connection with a remote bookmaking operation (if the is alleged to be won or to have been paid upon a wager or which
person offering or facilitating the bet is an unlicensed bookmaker or has been deposited to abide the event on which a wager is made”.
betting intermediary). There has been recent case law on this point. In Sporting Index
The Revenue Commissioners are tasked with policing these Limited v John O’Shea [2015] IEHC 407, the Irish High Court
provisions. They are empowered under the Betting Act 1931 (as found that as a matter of principle, a gambling debt owed by an Irish
amended) to enforce these provisions by way of compliance notices. resident (Mr. O’Shea) was not enforceable against the UK-based
Such compliance notices may be appealed to the District Court. spread betting operator Sporting Index.
Ireland
The High Court held that enforcing the gambling debt in Ireland
3.3 What terminal/machine-based gaming is permitted would contradict the public policy of the Gaming and Lotteries Act
and where? 1956. An English judgment against Mr. O’Shea for €118,058.99
was therefore not enforceable in Ireland (although an order for legal
Irish law will generally regard fixed odds betting terminals costs was enforceable).
(“FOBTs”) as a form of unlawful gaming. FOBTs (of the type As currently drafted, the Heads of the Gambling Control Bill
which are common in the retail units of UK high-street bookmakers) (which are commented on more fully below) propose making
are not presently common in Ireland. gambling contracts enforceable in most circumstances. However,
The promotion or provision of facilities for gaming on slot machines unless and until this proposal becomes law, the legal position on the
is specifically prohibited by section 4(1) of the 1956 Act. enforcement of gambling debts remains as stated by the High Court
in Sporting Index Ltd v John O’Shea.
The provision and licensing of gaming machines is governed by the
terms of the Finance Act 1975 (as amended). See questions 1.2 and While a betting operator cannot sue on foot of a gambling debt,
2.4 above. equally a punter cannot sue a betting operator who refuses to
pay out on a debt. However, betting operators (including betting
intermediaries) who refuse to pay out may have difficulty in
4 Enforcement and Liability obtaining or renewing their licences. The licensing process requires
the operator to be certified by the Minister for Justice and Equality
as a “fit and proper person” to hold such a licence. One factor the
4.1 Who is liable for breaches of the relevant gambling
Minister can take into account when considering fitness is whether
legislation?
the operator “unreasonably refuses or refused to pay sums due to
persons who won bets made with [it]”. So although a bet made
The answer to this question differs depending on the nature of the
with a betting operator is essentially unenforceable under Irish law,
product in question.
a refusal to pay out could mean that the operator may not be able to
The primary obligations in relation to the National Lottery sit with renew its betting licence.
the operator. Per the terms of the National Lottery Act 2013, the
operator must be a company. The main sanctions under the National
Lottery Act 2013, therefore, are monetary fines. 5 Anticipated Reforms
In relation to betting, licensed bookmakers and remote betting
intermediaries, the operators may be either individuals or 5.1 What (if any) intended changes to the gambling
companies. The sanctions for a “person” operating as a bookmaker legislation/regulations are being discussed currently?
or remote betting intermediary without a licence include modest
prison sentences. Although it is not entirely clear who a “person” Significant reforms to Ireland’s outdated gambling laws have been
could be in this context, we would anticipate that it would apply to promised. On 15 July 2013, the government published the General
the promoter or directors of the company offering the unlicensed Scheme for a Gambling Control Bill (the “Heads”). The Heads
services. are the first step towards a Bill which, if enacted, would modernise
Ireland’s legislative framework for all types of online and land-
4.2 What is the approach of authorities to unregulated based gambling.
supplies? The Heads are extensive, running to 90 pages, and are expected to
evolve over time. Below is a summary of the key provisions.
The Irish Revenue Commissioners are very active in monitoring and It is important to bear in mind that the Heads have no legal effect
policing the licensing regime relating to remote bookmakers and currently. The government has published only the General Scheme
remote betting intermediaries. of Heads of a Bill which will require very significant further work
before they will be capable of enactment. For example, the Heads
4.3 Do other non-national laws impact upon liability and do not address the core issue of taxation which will require separate
enforcement? legislation in a Finance Bill.
The Heads are intended to bring almost all forms of betting, gaming
Ireland is subject to the evolving laws of the European Union (and and lotteries legislation under one new legislative roof and to create
especially in respect of the free movement of services). a granular licensing regime to cover all main forms of gambling.
The Heads will also create a new gambling regulator, the Office of
4.4 Are gambling debts enforceable in your jurisdiction? Gambling Control, Ireland (“OGCI”), to be funded from licensing
fees (amounts to be determined by OGCI), and will introduce, for
the first time, extensive player protection measures.
As a general rule, gambling debts are not enforceable in Ireland.
To date, Ireland has not legislated in any meaningful way for any
Section 36 of the Gaming and Lotteries Act 1956 notes that “every
remote gaming models or for land-based casinos. While some
contract by way of gaming or wagering is void”. It further specifies
progress is being made in relation to the licensing and regulation of
that “no action shall lie for the recovery of any money or thing which
92 WWW.ICLG.CO.UK ICLG TO: GAMBLING 2017
© Published and reproduced with kind permission by Global Legal Group Ltd, LondonArthur Cox Ireland
remote bookmakers and betting exchanges, other forms of gambling The Heads allow the Minister for Justice and Equality to alter the
like casinos, gaming, lotteries and bingo were either prohibited or maximum amounts every three to four years.
subject to archaic prohibitions in the Gaming and Lotteries Act While Ireland has always had an active sports betting industry,
1956. particularly in horseracing, we have not traditionally had land-based
For the first time in Ireland, the Heads would make it possible casinos. A previous proposal in the 1990s to build a supercasino
to obtain a licence to operate a casino (remotely or retail), a new in the Phoenix Park in Dublin met with significant resistance and
licensing regime would apply to all online betting and gaming was shelved. Attitudes have changed considerably since then as
Ireland
operators who do business with Irish customers and an updated Irish people have enjoyed access to all forms of gambling online.
regime would be introduced to govern charitable lotteries, bingo, In addition, the emergence of “private members clubs”, who sought
prize competitions and gaming in retail and amusement locations. to operate within the confines of the existing restrictions, created an
The OGCI would be the licensing body for the 43 new categories avenue for players interested in table betting although the regulatory
of gambling licences and two categories of “registrations” which environment governing such clubs was vague.
are set out in the Heads. Gambling operators who offer any form of Between 2006 and 2008, reform of the casino sector was advocated
gambling by any means to persons in Ireland will require a licence by a Casino Regulation Committee which was appointed under the
from the OGCI. Those who locate equipment in Ireland may also be previous government, while private members clubs operating as
covered by a registration system even if they exclude Irish players casinos also became subject to anti-money laundering requirements
from their services. in 2003 and 2004.
Where a licence is held by a corporate body, most licences require There appears to be no political will to introduce super-casinos in
a named person(s) to hold a personal licence, with the named Ireland. The Heads instead propose to licence up to 40 casinos with
licensee being accountable for compliance. Existing licences under modest table limits (15) and gaming machine limits (25) per location.
the Betting Act 1931 (as amended) would continue in force until Planning permission will also be required for each premises and the
they first fall for renewal after the new legislation has commenced. location of casinos is subject to public policy restrictions (e.g. not
However, there will be no “grandfathering” of licences so every near hospitals, places of worship, schools, etc.). Normal liquor
existing bookmaker, betting exchange and other licensed operator licensing requirements and bar hours will apply.
would be required to submit fresh applications. Some bookmakers From a commercial perspective, Ireland is a fairly small market and
would require several licences, for example, if they operate a land- it is doubtful that there is currently a market for the maximum of 40
based bookmakers’ shop, some remote betting and a pitch at a casinos mentioned in the Heads.
racecourse.
Special events licences will also be available, for example, for
The Head proposes that bookmakers would be permitted to have hosted poker tournaments, with a facility to enable promoters of
gaming in their shops although the provisions governing this are not such tournaments to apply for “white-listing”. Pubs and clubs may
clear at this point. Credit facilities for players are prohibited and apply for temporary special event licences.
the concept of “player cards” (both physical and virtual) is included
The Heads will apply in full to all gambling services which are made
in the Heads but the practicalities of how they will work is unclear.
available to players located in Ireland. In addition, a registration
Suspicious betting patterns will be required to be notified to the requirement with the OGCI will apply to those who choose Ireland
OGCI. as a venue for locating their online facilities even if they exclude
Financial spread betting is excluded from the scope of the Heads Irish players. Those providing certain software, equipment or certain
and will remain under the regulation of the Central Bank under the services to licensed operators will be subject to the registration
Market in Financial Instruments Directive (“MiFID”). The Heads requirement while the OGCI may also approve a list of equipment/
appear to apply to spread betting on sports although the taxation of gambling calibration or other industry standards.
spread bets will require clarification. As it stands, Ireland is a European hub for the world’s leading
The government has retained its stance against Fixed Odds Betting Internet companies who are attracted to the availability of a flexible
Terminals (“FOBTs”) which would remain prohibited under the and skilled workforce within a dynamic technology sector. While
new regime. The Minister for Justice and Equality has the power the particulars of any online gambling taxes and fees are not yet
to exclude other classes of games or machines on public policy clear, one would expect that the new regime would be designed
grounds. Some as yet unspecified gaming machines will be to attract reputable gambling operators interested in locating in
permitted at retail outlets such as catering outlets, bars, shopping a properly regulated but low corporate taxation environment. In
centres and airports. time, Ireland may become an attractive location for online operators
The Tote is currently excluded from the Heads although this is looking to establish a hub within the EU.
subject to inclusion in due course. It is noticeable that “pool betting” Remote Gambling Licences
is intended to be covered by the licensing regime. The prize bonds In contrast with some EU Member States, there is no appetite in
regime will remain intact. Ireland to restrict reputable online operators from being licensed in
While the Heads state that they are not intended to affect the Ireland. Accordingly, there will be no limit on the number of online
National Lottery Act 2013, they do propose to introduce several new casinos, bookmakers, betting exchanges, etc. that can be licensed.
categories of lottery licences for lotteries that apply at least 25% of The Heads also anticipate potential mutual recognition of licences
the proceeds of sales “in aid of a charitable or philanthropic cause”. held in other countries. However, assessments of applications will
Certain smaller lotteries will be exempt. However, at the higher include criteria based on views submitted by the Gardaí (police),
end, annual licences could be obtained for lotteries having a prize planning authorities, third parties who respond to the advertisement
fund in excess of €50,000 per week or €250,000 per month (with a of a licence and competition law.
maximum prize fund limit of €400,000 per month).
Only licensed operators may advertise gambling services available
Scratch cards would be subject to a separate annual licence to Irish players and various restrictions apply to how advertising,
requirement subject to the maximum prize not exceeding €1,750. promotion and sponsorship can take place with further rules to be
issued by the OGCI in the future.
ICLG TO: GAMBLING 2017 WWW.ICLG.CO.UK 93
© Published and reproduced with kind permission by Global Legal Group Ltd, LondonArthur Cox Ireland
Enforcement As regards underage gambling, a licence holder shall have a defence
The OGCI will have the power to direct the taking of ISP blocking if it can show that it took all reasonable steps to verify age and to
measures to prevent, disrupt or obstruct access to unlicensed remote prevent persons under 18 years from engaging in gambling. A
services. A District Court procedure will be available to enforce Social Fund dedicated to the protection of the vulnerable is included.
internet blocking and court orders may also include restrictions on However, it is unclear how the Social Fund will sit with the broader
advertising, payment services and the freezing of bank accounts. issue of taxation of gambling. In the absence of visibility of the
specific Social Fund amounts, licence fee rates and other gaming
What are the Player Protection Measures?
Ireland
duties (if any), the economics of the proposed regime are unclear
The Heads allow OGCI to introduce various player protection at this point.
measures relating to problem gambling (including a self-exclusion
At the time of printing, the Heads are on the government’s legislative
register), under-age gambling, match-fixing, cheating, customer
agenda. It has been suggested in certain public comments by
complaints processes and compensation procedures. The OGCI
government representatives that certain parts of the Heads might be
will be assisted by an advisory committee on responsible gaming.
enacted before others (especially around player protection which is
The common law position whereby gambling contracts were
an urgent and politically sensitive issue).
unenforceable in Ireland will be reversed (save in the case of bets
with minors) and punters may appeal the terms of a substantially
unfair bet to the Circuit Court within six months.
Rob Corbet Chris Bollard
Arthur Cox Arthur Cox
Earlsfort Terrace Earlsfort Terrace
Dublin 2 Dublin 2
Ireland Ireland
Tel: +353 1 618 0566 Tel: +353 1 618 0649
Email: rob.corbet@arthurcox.com Email: chris.bollard@arthurcox.com
URL: www.arthurcox.com URL: www.arthurcox.com
Rob Corbet is Head of the Technology & Innovation Practice in Arthur Chris Bollard advises a number of large, established players in the
Cox, the largest legal team in Ireland dedicated to specialist IT, data gaming and betting industry on regulatory as well as commercial
protection and Intellectual Property law. Rob’s practice is primarily matters. Chris frequently advises clients (including multi-national
focused on technological innovation and, in particular, the protection clients) on licence applications, novel product structures and the
and commercialisation of data and other forms of intellectual property. laws relating to the promotion of competitions and other promotions.
He is ranked as a “Market Leader” by Chambers Europe and a Chris closely monitors regulatory developments in the betting and
“Leading Individual” in Ireland for both his Information Technology and gaming space in Ireland and has written client updates on the Betting
Intellectual Property practices by The Legal 500: EMEA. Rob’s Betting (Amendment) Act 2015, the Gambling Control Heads of Bill and the
and Gaming practice is market leading, reflecting over 16 years of National Lottery Act 2013. He is the co-author (with Rob Corbet) of
experience advising the leading players in the gambling industry the Irish chapter of Gaming Law – European Reference Series, first
in Ireland and internationally. He is a member of the International published in 2012, now it its third edition.
Masters of Gaming Law and he wrote the Irish Chapter for the
global reference publication Gaming Law Jurisdictional Comparisons
(Thomson Reuters, first and second editions, 2012 and 2014). Rob
has acted for Ireland’s largest gambling operator since 2000.
Arthur Cox has Ireland’s leading practice in the area of betting and gaming. In addition to advising Ireland’s leading betting operators we also
advise multi-national operators and suppliers who have chosen Ireland as a venue to host some or all of their IT infrastructure and/or corporate
headquarters. We have extensive experience in relation to the regulation of gambling in Ireland and the EU. Partner Rob Corbet is widely regarded
as a leading authority in the area of online gambling regulation. Rob and associate Chris Bollard are authors of the Irish Chapter of “Gaming Law –
European Reference Series” which was first published in 2012 and is now in its third edition. Rob is also a member of the International Masters of
Gaming Law (“IMGL”).
94 WWW.ICLG.CO.UK ICLG TO: GAMBLING 2017
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