Gambling Bill

House of Commons

Session 2004 - 05
Internet Publications
Other Bills before Parliament

Gambling Bill

Gambling Bill
Part 16 — Advertising
136

312
Person accompanying inspector, &c.
A constable, enforcement officer or authorised person exercising a power
under or by virtue of this Part to enter premises may take one or more persons
with him.
313
Securing premises after entry
5
A person who enters premises in reliance on a power under or by virtue of this
Part shall take reasonable steps to ensure that when he leaves the premises they
are as secure as they were before he entered.
314
Obstruction
(1)
A person commits an offence if without reasonable excuse he obstructs, or fails
10
to cooperate with, a constable, enforcement officer or authorised person who is
exercising or seeking to exercise a power under or by virtue of this Part.
(2)
A person guilty of an offence under this section shall be liable on summary
conviction to a fine not exceeding level 3 on the standard scale.
Part 16
15
Advertising
315
Meaning of “advertising”
(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,
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(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—
25
(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.
(2)
For the purposes of subsection (1) a person shall be treated as bringing facilities
30
for gambling to the attention of one or more persons with a view to increasing
the use of the facilities if—
(a)
he enters into arrangements (whether by way of sponsorship, brand-
sharing or otherwise) under which a name is displayed in connection
with an event or product, and
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(b)
either—
(i)
the provision of facilities for gambling is the sole or main
activity undertaken under that name, or
(ii)
the manner or context in which the name is displayed is
designed to draw attention to the fact that facilities for gambling
40
are provided under that name.

Gambling Bill
Part 16 — Advertising
137

316
Regulations
(1)
The Secretary of State may make regulations controlling the advertising of
gambling.
(2)
The regulations may, in particular, make provision about—
(a)
the form of advertisements;
5
(b)
the content of advertisements;
(c)
timing;
(d)
location.
(3)
Regulations by virtue of subsection (2)(b) may, in particular, require specified
words to be included in advertisements.
10
(4)
In making regulations under this section the Secretary of State shall, in
particular, have regard to the need to protect children and other vulnerable
persons from being harmed or exploited by gambling.
(5)
A person commits an offence if he contravenes a requirement of regulations
under this section.
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(6)
Regulations under this section may provide defences (whether similar to those
provided by section 318 or otherwise).
(7)
A person guilty of an offence under subsection (5) shall be liable on summary
conviction to—
(a)
imprisonment for a term not exceeding 51 weeks,
20
(b)
a fine not exceeding level 5 on the standard scale, or
(c)
both.
(8)
Regulations under this section may, in particular, make provision generally or
by reference to—
(a)
specified classes of gambling,
25
(b)
specified classes of advertisement, or
(c)
activity undertaken in or in connection with specified places.
317
Broadcasting
(1)
Regulations under section 316 may not make provision about advertising by
way of television or radio services to which section 319 of the Communications
30
Act 2003 (c. 21) applies.
(2)
The Office of Communications shall under that section set, review and revise
standards in respect of advertisements for gambling.
(3)
In complying with subsection (2) the Office of Communications—
(a)
shall consult the Gambling Commission, and
35
(b)
shall ensure that the standards reflect the provisions of regulations
under section 316.
(4)
Regulations under section 316 may not make provision about advertising by
way of a service which—
(a)
is provided by the British Broadcasting Corporation, and
40
(b)
would be licensable under Part 1 or 3 of the Broadcasting Act 1990
(c. 42) or under Part 1 or 2 of the Broadcasting Act 1996 (c. 55) were it
provided by a person subject to licensing under that Part.

Gambling Bill
Part 16 — Advertising
138

318
Unlawful gambling
(1)
A person commits an offence if he advertises unlawful gambling.
(2)
For the purposes of this section advertised gambling is unlawful if—
(a)
in order for the gambling to take place as advertised without the
commission of an offence under this Act it would or might be necessary
5
to rely on a licence, notice, permit or registration under this Act or an
an exception to an offence under this Act, and
(b)
at the time of advertising—
(i)
arrangements for a licence, notice, permit or registration,
sufficient to prevent the commission of an offence under this
10
Act if the gambling takes place as advertised, have not been
completed, and
(ii)
the arrangements for the gambling as advertised are not such as
to ensure that an exception to the offence will apply.
(3)
Subsection (1) does not apply to anything done by way of promoting a lottery.
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(4)
It is a defence for a person charged with an offence under subsection (1) by
reference to action of a kind described in section 315(1)(a) or (b) to show that
he reasonably believed that the advertised gambling was lawful.
(5)
Where a person acts in a way described in section 315(1)(c) he commits the
offence under subsection (1) above only if he knows or should know that the
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advertised gambling is unlawful.
(6)
A person does not commit an offence under subsection (1) by reason only of
delivering, transmitting or broadcasting a communication or making data
available if—
(a)
he acts in the course of a business of delivering, transmitting or
25
broadcasting communications (in whatever form or by whatever
means) or making data available, and
(b)
the nature of the business is such that persons undertaking it have no
control over the nature or content of the communications or data.
(7)
A person guilty of an offence under this section shall be liable on summary
30
conviction to—
(a)
imprisonment for a term not exceeding 51 weeks,
(b)
a fine not exceeding level 5 on the standard scale, or
(c)
both.
(8)
In the application of subsection (7) to Scotland the reference to 51 weeks shall
35
have effect as a reference to six months.
319
Foreign gambling
(1)
A person commits an offence if he advertises foreign gambling.
(2)
In this section “foreign gambling” means—
(a)
non-remote gambling which is to take place in a non-EEA State, and
40
(b)
remote gambling none of the arrangements for which are subject to the
law about gambling of an EEA State (whether by being regulated,
exempted, prohibited or otherwise).

Gambling Bill
Part 16 — Advertising
139

(3)
The Secretary of State may by regulations provide that a specified country is to
be treated for the purposes of subsection (2) as if it were an EEA State.
(4)
A person guilty of an offence under subsection (1) shall be liable on summary
conviction to—
(a)
imprisonment for a term not exceeding 51 weeks,
5
(b)
a fine not exceeding level 5 on the standard scale, or
(c)
both.
320
Territorial application: non-remote advertising
(1)
Regulations under section 316 shall apply to anything in the way of advertising
which is done—
10
(a)
wholly or partly in Great Britain, and
(b)
otherwise than by way of remote communication.
(2)
The prohibition in section 318(1) applies to anything in the way of advertising
which is done—
(a)
wholly or partly in Great Britain, and
15
(b)
otherwise than by way of remote communication.
(3)
The prohibition in section 319(1) applies to anything in the way of advertising
which is done—
(a)
wholly or partly in the United Kingdom, and
(b)
otherwise than by way of remote communication.
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(4)
For the purposes of this section the following are immaterial—
(a)
the nature of gambling to which advertising relates (whether remote or
non-remote), and
(b)
the location of the gambling to which advertising relates.
321
Territorial application: remote advertising
25
(1)
Regulations under section 316 shall have effect in relation to advertising by
way of remote communication only if—
(a)
the advertising satisfies the test in subsection (4),
(b)
the advertising satisfies the additional test in subsection (5) or (6), if
relevant, and
30
(c)
the gambling to which the advertising relates satisfies the test in
subsection (9).
(2)
The prohibition in section 318(1) applies to advertising by way of remote
communication only if—
(a)
the advertising satisfies the test in subsection (4),
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(b)
the advertising satisfies the additional test in subsection (5) or (6), if
relevant, and
(c)
the gambling to which the advertising relates satisfies the test in
subsection (9).
(3)
The prohibition in section 319(1) applies to advertising by way of remote
40
communication only if the advertising satisfies the test in subsection (4); for
which purpose a reference to Great Britain shall be taken as a reference to the
United Kingdom.

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Part 16 — Advertising
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(4)
The test referred to in subsections (1)(a), (2)(a) and (3) is that the advertising
involves—
(a)
providing information, by whatever means (and whether or not using
remote communication), intended to come to the attention of one or
more persons in Great Britain,
5
(b)
sending a communication intended to come to the attention of one or
more persons in Great Britain,
(c)
making data available with a view to its being accessed by one or more
persons in Great Britain, or
(d)
making data available in circumstances such that it is likely to be
10
accessed by one or more persons in Great Britain.
(5)
In the case of a broadcast by television, the additional test is that the
broadcaster—
(a)
is under the jurisdiction of the United Kingdom for the purposes of
Directive 89/552/EEC on the coordination of provisions concerning
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television broadcasting, or
(b)
is not under the jurisdiction of an EEA State for the purposes of that
Directive.
(6)
In the case of the dissemination of information by way of an information
society service within the meaning of Directive 2000/31/EC on electronic
20
commerce, the additional test is that the service provider—
(a)
is established in the United Kingdom for the purposes of that Directive,
(b)
is established in a non-EEA State for the purposes of that Directive, or
(c)
has been notified that the conditions for derogation specified in Article
3(4) of that Directive are satisfied in relation to the application to the
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service provider of regulations under section 316 and of section 318.
(7)
The reference to notification in subsection (6)(c) is a reference to written notice
which—
(a)
has been given by the Commission,
(b)
has neither expired nor been withdrawn, and
30
(c)
states whether the Commission’s opinion as to satisfaction of the
conditions for derogation relates—
(i)
to the conditions specified in Article 3(4)(a) and (b), or
(ii)
by virtue of Article 3(5), only to the conditions specified in
Article 3(4)(a).
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(8)
In a case to which subsection (7)(c)(ii) applies, the Commission shall perform
the duties of notification imposed on the United Kingdom by Article 3(5).
(9)
The test referred to in subsections (1)(c) and (2)(c) is—
(a)
in the case of non-remote gambling, that it is to take place in Great
Britain, or
40
(b)
in the case of remote gambling, that at least one piece of remote
gambling equipment to be used in providing facilities for the gambling
is or will be situated in Great Britain.

Gambling Bill
Part 17 — Legality and Enforceability of Gambling Contracts
141

Part 17
Legality and Enforceability of Gambling Contracts
322
Repeal of provisions preventing enforcement
(1)
The following shall cease to have effect—
(a)
section 1 of the Gaming Act 1710 (c. 19) (voiding of security for
5
winnings or for repayment of gaming loan, &c.),
(b)
remaining provisions of the Gaming Act 1835 (c. 41) (security deemed
given for illegal consideration),
(c)
section 18 of the Gaming Act 1845 (c. 109) (voiding of gaming
contracts),
10
(d)
section 1 of the Gaming Act 1892 (c. 9) (voiding of promise to repay),
and
(e)
in section 412 of the Financial Services and Markets Act 2000 (c. 8)
(gaming contracts)—
(i)
in subsection (1)(a), the words “section 18 of the Gaming Act
15
1845, section 1 of the Gaming Act 1892 or”, and
(ii)
subsection (1)(b).
(2)
The repeals in subsection (1) do not permit enforcement of a right which is
created, or which emanates from an agreement made, before this section comes
into force.
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323
Enforceability of gambling contracts
(1)
The fact that a contract relates to gambling shall not prevent its enforcement.
(2)
Subsection (1) is without prejudice to any rule of law preventing the
enforcement of a contract on the grounds of unlawfulness (other than a rule
relating specifically to gambling).
25
324
Power of Gambling Commission to void bet
(1)
The Commission may make an order under this subsection in relation to a bet
accepted by or through the holder of—
(a)
a general betting operating licence,
(b)
a pool betting operating licence, or
30
(c)
a betting intermediary operating licence.
(2)
Where the Commission makes an order under subsection (1) in relation to a
bet—
(a)
any contract or other arrangement in relation to the bet is void, and
(b)
any money paid in relation to the bet (whether by way of stake,
35
winnings, commission or otherwise) shall be repaid to the person who
paid it, and repayment may be enforced as a debt due to that person.
(3)
The Commission may make an order under subsection (1) in relation to a bet
only if satisfied that the bet was substantially unfair.
(4)
In considering whether a bet was unfair the Commission shall, in particular,
40
take account of any of the following that applies—

Gambling Bill
Part 17 — Legality and Enforceability of Gambling Contracts
142

(a)
the fact that either party to the bet supplied insufficient, false or
misleading information in connection with it,
(b)
the fact that either party to the bet believed or ought to have believed
that a race, competition or other event or process to which the bet
related was or would be conducted in contravention of industry rules,
5
(c)
the fact that either party to the bet believed or ought to have believed
that an offence under section 41 had been or was likely to be committed
in respect of anything to which the bet related, and
(d)
the fact that either party to the bet was convicted of an offence under
section 41 in relation to the bet.
10
(5)
An order under subsection (1) may be made in relation to a bet only during the
period of six months beginning with the day on which the result of the bet is
determined.
(6)
But subsection (5) shall not apply to an order made taking account of the fact
that a party to the bet was convicted of an offence under section 41 in relation
15
to it.
325
Section 324: supplementary
(1)
Where the Commission makes an order under section 324(1) in relation to a bet
a party to the bet or to any contract or other arrangement in relation to the bet
may appeal to the Gambling Appeals Tribunal; and the following provisions
20
of Part 7 shall have effect (with any necessary modifications) in relation to an
appeal under this section as they have effect in relation to an appeal under that
Part—
(a)
section 139,
(b)
section 140,
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(c)
section 141,
(d)
section 142,
(e)
section 143, and
(f)
section 144.
(2)
The Commission may make an order under section 324(1) in relation to the
30
whole, or any part or aspect of, a betting transaction.
(3)
An order under section 324(1) may make incidental provision; in particular, an
order may make provision about—
(a)
the consequences of the order for bets connected with the bet which
becomes void under the order;
35
(b)
the consequences of the order for other parts or aspects of a betting
transaction one part or aspect of which becomes void under the order.
(4)
For the purposes of considering whether to make an order under section 324(1)
in respect of a bet the Commission—
(a)
may require a person by or through whom the bet is made or accepted
40
to provide information or documents in relation to it, and
(b)
may take into account information received from any other person.
(5)
A person commits an offence if without reasonable excuse he fails to comply
with a requirement under subsection (4).
(6)
A person guilty of an offence under subsection (5) shall be liable on summary
45
conviction to a fine not exceeding level 2 on the standard scale.