APPENDIX
COMMENTARY ON SPECIFIC PROVISIONS
1. DEFINITION
OF REMOTE
COMMUNICATION (CLAUSE
3)
1.1 Clause 3(2) defines "remote communication"
by reference to various technologies including television and
radio. We suggest that it should be made clear that communication
in such circumstances must involve a two way process so that,
for example, a customer watching a race on television but betting
in person would not involve that person "participating"
by way of any remote communication merely by having watched the
race on television.
2. PROVISION
OF FACILITIES
FOR GAMBLING
(CLAUSES 4 AND
21)
2.1 The offence of providing facilities
for gambling in Clause 21 is drafted very widely. So too is the
definition of when a person may be considered to "provide
facilities for gambling" under Clause 4. BSkyB is concerned
that a number of activities which it currently undertakes may
be considered to amount to "providing facilities for gambling"
and not fall within the exceptions of Clause 4(3).
2.2 In particular the operation of the digital
satellite platform itself may be considered to amount to providing
such facilities. It is not clear that the various services provided
by Sky Subscribers Services Limited ("SSSL"), the BSkyB
company that operates the platform, could be described simply
as "making facilities for electronic communications available
for use by [gambling operators]" or, even if it is, that
SSSL would be able to avail itself of that exemption where it
receives a share of the gambling revenues in connection with its
role as operator of the digital satellite platform. Similar concerns
could also arise in the context of websites providing links to
gambling sites.
2.3 If this uncertainty is not cleared up
it is likely to result in a wide range of "non-operators"
seeking licences of one sort or another simply to ensure that
they do not breach the prohibition on providing facilities for
gambling. This would add an unwarranted layer of regulation on
such entities and therefore lead to unnecessary costs and inefficiencies
not only for those entities themselves but also for the Gambling
Commission.
2.4 One potential solution to this would
be to widen the scope of Clause 21(3) so that it not only applies
to a person who "acts in the course of a business carried
on by a person who holds an operating licence authorising the
activity" but extends to anyone whose involvement (whether
through the provision of facilities for gambling or otherwise)
is merely a preparatory step to that other person performing the
activity authorised by the operating licence. Additionally, there
should be provision made here ensuring that where persons take
such preparatory steps in the reasonable belief that they are
in relation to activity authorised by an operating licence, the
fact that the activity is not so authorised (eg because the manner
in which it is carried on is in breach of the operating licence)
should not result in that first person having committed an offence.
3. DEFINITION
OF BETTING
INTERMEDIARY (CLAUSE
8)
3.1 The definition of a "betting intermediary"
in Clause 8 is a new legal concept and is potentially far reaching
in its current form. Although presumably aimed at betting exchange
operators such as Betfair, the definition could conceivably also
capture a number of additional activities. For example, the operator
of a betting portal which offered a tipster service or a price
comparison service could be said to be "facilitating the
making or acceptance of bets between others". Is this really
the intention?
3.2 Although we believe that betting exchanges
should be brought within the scope of the proposed regime, we
would suggest that this definition be re-visited and tightened
up.
4. LICENSING
OF REMOTE
GAMBLING OPERATORS
(CLAUSES 51-54)
4.1 Although BSkyB understands (and agrees
with) the policy behind the various separate licences for non-remote
gambling, we do not believe that the same policy objectives necessarily
apply to the licensing of the various forms of remote gambling.
We believe that remote gambling might more naturally lend itself
to a single licence structure.
4.2 Whilst Clause 54 contemplates a multiple
licence for non-remote gambling, the operation of Clauses 54 (3)
and (4) under which a remote casino operating licence could be
extended to cover betting and bingo, would only appear to be possible
for certain forms of remote gambling. Whilst an Internet or interactive
television-based casino may well include certain forms of betting
and bingo opportunities, the effect of Clause 54(4) would appear
to be to require an operator of such a combined service to get
a separate general betting operating licence if it wants to operate
a separate betting website or if it wishes to permit telephone
betting (since neither could be said to be provided "as part
of the arrangements by which the casino is operated").
4.3 Remote casino operators providing a
mix of casino, betting and bingo to players are therefore not
likely to want to avail themselves of the multiple licence provided
for in Clause 54 but will instead seek individual remote gambling
licences. BSkyB believes that this is unduly burdensome and likely
to delay the provision of services without producing any clear
benefits over the potential alternative of a more widely drawn
single remote gambling licence.
5. OFFENCES BY
YOUNG PERSONS
(CLAUSES 36-38)
5.1 We question whether criminalising young
persons in the manner suggested by these Clauses is really a good
idea.
6. PROHIBITED
TERRITORIES AND
FOREIGN OFFENCES
(CLAUSES 31 AND
99)
6.1 We are disconcerted by the power reserved
to the Secretary of State in Clause 31 to prevent use of equipment
in Great Britain if it enables persons to gamble in "prohibited
territories". This provision runs counter to the various
recent pronouncements by the DCMS in relation to the proposed
legality under the Bill of online gambling in the Great Britain
(irrespective of the view taken in the US and other jurisdictions).
Conceptually we believe the former approach was to be preferred—if
other jurisdictions want to prevent their citizens engaging in
remote gambling that should be an issue for them and their citizens,
not British-based operators providing services legally under law
in this country.
6.2 The potential effect of Clause 31 can
be seen to be particularly perverse when considered in conjunction
with the extension of "relevant offences" under Clause
99(2)(b) to "foreign offences". Whilst in principle
we agree that a foreign offence of, for example, theft should
be treated the same as a domestic offence under the Bill, separate
consideration should be given to foreign offences arsing as a
result of remote gambling activities. As currently drafted, were
a licensed UK online casino, operating in accordance with its
licence, to be convicted in the US in connection with that remote
gambling, then that US offence would be a "relevant offence"
under Part 5 of the Bill potentially jeopardising the operator's
licence. This would be the case even if the Secretary of State
had not designated the US a "prohibited territory" under
Clause 31.
7. CUSTOMER LOTTERIES
(SCHEDULE 8, PART
3)
7.1 We find this an interesting concept
and wonder whether it might be applied more widely so that businesses
that provide their services remotely might also be able to operate
such lotteries for the benefit of their customers. In this way
BSkyB could operate a weekly lottery for Sky Digital customers
through its interactive television services.
7.2 We recognise that the tying of customer
lotteries to individual business premises minimises the risks
of this form of exempt lottery being abused, however, we believe
that additional safeguards could be built in to customer lotteries
to allow them to be offered by remote means. Specifically we would
envisage a requirement for there to be a discrete service that
the lottery operator provides to genuine customers and the lottery
being operated closely in conjunction with that service for that
lottery to qualify as an exempt customer lottery.
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