With the exception of the National Lottery, commercial lotteries are prohibited, and small and large lotteries can only be operated for charitable purposes. Offering bets on the National Lottery is prohibited. In terms of the regulatory obligations imposed upon licensees by British licences, these are described above.
In December 2020, the UK Government opened a new review into the Gambling Act 2005. The terms of the review are wide-ranging, addressing topics such as the protection of customers in an online setting, rules around gambling advertising, sponsorship and branding, the powers of the Gambling Commission, and the framework for consumer redress. The UK Government was expected to release a white paper, setting out their proposals for future legislation, during the course of 2021, though this has been delayed. At the time of writing, it is thought that the white paper will be released in late 2022. Also, as mentioned above, a modernising instrument is under consideration in respect of gambling regulation in Northern Ireland.
The financial regulation of gambling is set out mostly in the British Finance Acts and provides for various levels of duty upon different types of gambling. Following the reduction of the maximum stakes for B2 gaming machines, the UK Government announced an increase to the remote gaming duty, from 15 to 21% of gross gaming yield. Pursuant to the Finance Act 2014, as amended by the Finance Act 2019, online licence holders must pay a tax of 21% of their gross gaming yield in relation to accounting periods beginning on or after 1 April 2019, generated from UK customers, even if the operator is located outside the UK.
In addition to the main LCCP, the British regulator also publishes a large body of literature comprising regulatory advice, policies and guidance. Of particular importance are the now numerous “public statements” and annual “Enforcement Reports” detailing the acts and omissions of operators that have triggered regulatory action, as an example of “what to avoid” for other operators.
There is extensive gambling regulation in Great Britain, mostly imposed upon licensees by the various conditions and codes of practice attached to their gambling licences, which are colloquially referred to by the acronym “LCCP”. These LCCP impose extensive obligations upon licensees in, amongst others, the fields of social responsibility, anti-money laundering and the prevention of terrorist financing, consumer fairness and transparency, responsible advertising and obligations to comply with various technical standards that apply in respect of both non-remote and remote forms of gambling. Other regulation also applies. Gambling operators are subject to the advertising regulations of the British Advertising Standards Authority and the industry of the British “Industry Group for Responsible Gambling”.
The main legislation governing gambling in the three forms identified in English law (gaming, betting and participating in a lottery) is the Gambling Act 2005. It is important to note that this instrument does not extend to Northern Ireland, where legislation based on the Gaming Act 1968 continues to apply (although a modernising instrument is currently under consideration in the Northern Irish Assembly). Originally the Gambling Act 2005 applied only to those persons who had a physical connection with Great Britain; for example, land-based gambling businesses located in Great Britain or items of remote gambling equipment located in Great Britain. This so-called “point-of-supply” legislative scheme was reversed (in the case of remote gambling) by the Gambling (Licensing and Advertising) Act 2014, which converted the British system into a so-called “point-of-consumption” regime, which criminalised any person in any jurisdiction who makes available facilities for gambling to British players on a remote basis without British licences. This instrument brought the British system into line with various of the European so-called “regulated markets”, where the requirement to obtain a licence for that market and account for gambling duty extends to remote providers of gambling outside the jurisdiction.
1.2 Specify: (i) the law and regulation that applies to the Relevant Products in your jurisdiction; and (ii) – in broad terms – whether it permits or prohibits the offer of Relevant Products to persons located in your jurisdiction.
Not regarded as gambling where the element of chance is no more than de minimis.
Fantasy betting (payment to back a ‘league’ or ‘portfolio’ selection over a period of time, for example in relation to sport or shares)
2.1 What regulatory licences, permits, authorisations or other official approvals (collectively, “Licences”) are required for the lawful offer of the Relevant Products to persons located in your jurisdiction?
The Gambling Act 2005 provides for a range of licences to be granted to both non-remote (i.e. land-based) as well as remote businesses. Points to note are that land-based casino licences are not freely available and the rollout of major casino resorts envisaged when the legislation was passed has generally not occurred. Casinos in the UK are generally operated under historic licences that were rolled forward under the “new” Gambling Act 2005. Suppliers of gambling machines made available for use in land-based environments similarly need to obtain their own licence.
As far as remote gaming and betting is concerned, licences are readily available to suitable applicants. Two features of the British licensing regime that potential applicants should note are its requirements that: (i) persons who are not gambling operators but who develop, supply or maintain gambling software may need to possess their own “gambling software operating licence”, quite separate to the licences needed to actually operate gambling; and (ii) the “key personnel” in any gambling business should possess personal licences or permits. Hence, the typical remote gambling business will require three types of British licence to lawfully offer remote gambling to British residents – an “operating” licence, a software “operating” licence and a suite of personal licences for its main personnel.
Generally, gambling licences are either “remote” or “non-remote”. This distinction cannot be ignored, and the regulator has no power to grant a licence that authorises both remote and land-based activity. Other than that, different types of gambling activity conducted by the same media can be combined – for example, a “remote” gambling operating licence might well have betting, gaming and software operation endorsed upon it.
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There are no tender or bidding processes, other than in the occasional case of land-based casino franchises being proposed. Persons wishing to enter the British land-based casino market have typically purchased existing businesses.
As well as an operating licence, an operator wishing to make gambling facilities available in a land-based environment (e.g. casino, betting shop, bingo hall or arcade centre) will also need to apply for a premises licence authorising that activity from the relevant local authority.
As in many jurisdictions, the main monopoly incumbent is the National Lottery, which has a monopoly on commercial lottery activity. The competition for the next National Lottery licence has recently concluded, with the long-time incumbent, Camelot, being replaced by Allwyn as preferred bidder to take over the operation of the National Lottery from 1 February 2024 (though it remains to be seen whether this will be successfully challenged). There are numerous charitable lottery operators that operate under certain regulatory constraints, much to the annoyance of the incumbent monopoly. Furthermore, bookmakers are free, under current British legislation, to offer bets on lottery results other than the British National Lottery.
Licences are available to persons based outside the United Kingdom. Remote licences are, in fact, a legal requirement for any business, wherever located, to offer facilities for gambling to British residents.
2.2 Where Licences are available, please outline the structure of the relevant licensing regime.
Eligibility for a British gambling licence depends upon the Gambling Commission’s assessment of a variety of factors, primarily the integrity and probity of the applicant and the applicant’s ability to conduct gambling in a solvent and responsible manner in compliance with law and regulation. Extensive disclosure of beneficial ownership is demanded and the regulator will also wish to see financial plans, business plans, management structures and the experience and competence of key personnel. Where applications are submitted in good order, with all associated information duly provided and application fees paid, the Gambling Commission aspires to process them in approximately 16 weeks.
2.3 What is the process of applying for a Licence for a Relevant Product?
The process is as described above. The application fees are assessed pursuant to a somewhat complex online calculation engine on the regulator’s website. These fees have historically been low in comparison to other regulators, for example certain US jurisdictions; however, from 1 October 2021, there was a 60% increase in all application fees made to the Gambling Commission.
2.4 Are any restrictions placed upon licensees in your jurisdiction?
Generally, all betting and gaming products may be offered. With the exception of the National Lottery, commercial lotteries are prohibited, and small and large lotteries can only be operated for charitable purposes. Offering bets on the National Lottery is prohibited. In terms of the regulatory obligations imposed upon licensees by British licences, these are described above.
2.5 Please give a summary of the following features of any Licences: (i) duration; (ii) vulnerability to review, suspension or revocation.
Operating licences are generally indefinite, subject to paying annual fees. Personal licences tend to have a five-year duration and must, however, be renewed. There are a variety of ways that the Gambling Commission can deal with non-compliance by licensees, ranging from enhanced compliance procedures and regulatory settlements to licence reviews and formal enforcement action. The Commission also has powers to launch criminal investigations and bring criminal proceedings against companies and individuals. However, in practice, and as a general rule, the Commission will not normally pursue a criminal investigation into a licensed operator, as in most cases it will consider that the matter under investigation is likely to be capable of being dealt with by the exercise of the Commission’s regulatory powers. This process of formal review – Section 116 of the Gambling Act 2005 – can result in almost any sort of penalty from the regulator, including suspension and revocation of licences.
The regulator can also reach so-called “regulatory settlements” with operators who have breached their licences, which usually comprise: (i) a divestment of funds to an identified victim which represents the benefit to the operator resulting from the breach, or a donation of an equivalent amount to a charity; and (ii) a payment in lieu of a formal fine. These sanctions can run into millions of pounds and several high-profile operators have fallen foul of the British regulator and suffered this outcome. Where an operator is deemed to be seriously deficient, there is the possibility of a licence suspension and a small number of licensees have suffered licence suspensions.
The sorts of events that typically trigger this process are where the operator accepts money from players that has been stolen, sometimes via obviously abnormal deposit patterns, and has failed to make appropriate enquiries as to the source of those funds, or the analogous situation where a player gambles far in excess of their means and the operator similarly fails to engage with them, resulting in social harm. An appeal process and an objective tribunal does exist, and operators are free to make representations to that body as well as, ultimately, before the courts.
2.6 By Relevant Product, what are the key limits on providing services to customers? Please include in this answer any material promotion and advertising restrictions.
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The British regime is not particularly restrictive in this regard and persons located in Great Britain are generally free to gamble as they please. For example, so-called “Novelty Bets” are permitted on non-sporting events and, as mentioned above, betting on lotteries (apart from the British National Lottery) is also permitted. There are extensive marketing and consumer protection restrictions, and these are described above. At present, there is an acute regulatory focus in the UK on the advertising and promotion of gambling, and the industry is under considerable pressure in relation to the amount and the content of gambling advertising, particularly where there is a perceived attractiveness to children or young persons or where there is the potential for customers to be misled. Affiliates are also coming under increased scrutiny (at least politically) and the links between gambling advertising and sport are coming under increased political scrutiny.
2.7 What are the tax and other compulsory levies?
Tax Rate General Betting Duty 15% for fixed-odds and totalisator bets 3% for financial spread bets 10% for all other spread bets 15% of the commission charges charged by betting exchanges to users who are UK citizens Pool Betting Duty 15% Remote Gaming Duty 21% Gross Gaming Yield Rate Land-Based Casino Gaming Duty The first £2,686,000 15% The next £1,852,000 20% The next £3,243,000 30% The next £6,845,000 40% The remainder 50%
An “economic crime levy” is payable by entities that are regulated for anti-money laundering purposes (currently only casinos in the UK) and which generate more than £10.2 million in UK revenue. The levy will be paid as a fixed fee based on the size band an AML-regulated entity falls into based on their UK revenue. There will be four size bands as follows:
Small firms (UK revenue of less than £10.2 million) – exempt.
– exempt. Medium firms (UK revenue between £10.2 million and £36 million).
Large firms (UK revenue between £36 million and £1 billion).
Very large firms (UK revenue in excess of £1 billion).
The levy will first be charged on entities that are regulated during the financial year from 1 April 2022 to 31 March 2023, and the amount payable will be determined by reference to their size based on their UK revenue from periods of account ending in that year. Amounts will be payable following the end of each financial year. Therefore, first payments will be made in the financial year from 1 April 2023 to 31 March 2024. The levy will be collected by the Gambling Commission.
2.8 What are the broad social responsibility requirements?
Gambling may not be made available or advertised to persons under the age of 18. There are limited exceptions for traditional activities, such as the football pools where the relevant age is instead 16. Exemptions also exist for products such as fairground amusements.
The bulk of the social responsibility obligations imposed upon British gambling licensees are set out in the second part of the “Licence Conditions and Codes of Practice” or “LCCP”, as referred to above. Operators are expected to execute robust age verification systems and stakes are required to be refunded to children and young persons and wagers voided. More widely, operators are expected to implement processes designed to identify when customers are exhibiting signs of potential harm and to interact and intervene in a way that is proportionate to the risk identified. Operators are increasingly expected to understand the affordability of the gambling undertaken by their players, particularly where players are high spenders. Operators are expected to have in place measures to detect self-excluded persons who might wish to re-register using different details. Multi-operator self-exclusion schemes are in place to allow consumers to self-exclude from multiple gambling premises in Great Britain. Similarly, a centrally co-ordinated self-exclusion database (“GAMSTOP”) also allows customers to self-exclude from remote gambling offered by operators licensed by the Gambling Commission.
2.9 How do any AML, financial services regulations or payment restrictions restrict or impact on entities supplying gambling? Does your jurisdiction permit virtual currencies to be used for gambling and are they separately regulated?
British regulation passes through the full effect of EU anti-money laundering and terrorist financing measures. Otherwise, payment processing per se is not licensable under British gambling law and the main restrictions are that land-based bingo and casinos may not offer credit for wagers and remote gambling operators may not accept credit card payments (including through money services providers).
There is no restriction on the use of digital and virtual currencies as a payment method for gambling, though operators wishing to accept virtual currencies will need to demonstrate how any additional risks of them doing so are mitigated.
2.10 What (if any) restrictions were placed during the COVID-19 pandemic? Are they still in force?
During the COVID-19 pandemic, in May 2020, the Gambling Commission issued formal guidance that amended Social Responsibility Code 3.4.1 (“SRCP 3.4.1”), which covers the requirements of operators to “interact with customers in a way which minimises the risk of customers experiencing harms associated with gambling”. These changes remained in force until a revised SRCP 3.4.1 entered into effect on 12 September 2022.