Gaming 2020 Gaming 2020

Gaming 2020 Gaming 2020 Contributing editor Behnam Dayanim © Law Business Research 2020 Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Gaming [email protected] Senior business development manager Adam Sargent 2020 [email protected] Published by Law Business Research Ltd Contributing editor Meridian House, 34-35 Farringdon Street London, EC4A 4HL, UK Behnam Dayanim The information provided in this publication Paul Hastings LLP is general and may not apply in a specific situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer– Lexology Getting The Deal Through is delighted to publish the third edition of Gaming, which is client relationship. The publishers and available in print and online at www.lexology.com/gtdt. authors accept no responsibility for any Lexology Getting The Deal Through provides international expert analysis in key areas of acts or omissions contained herein. The law, practice and regulation for corporate counsel, cross-border legal practitioners, and company information provided was verified between directors and officers. March and May 2020. Be advised that this is Throughout this edition, and following the unique Lexology Getting The Deal Through format, a developing area. the same key questions are answered by leading practitioners in each of the jurisdictions featured. Lexology Getting The Deal Through titles are published annually in print. Please ensure you © Law Business Research Ltd 2020 are referring to the latest edition or to the online version at www.lexology.com/gtdt. No photocopying without a CLA licence. Every effort has been made to cover all matters of concern to readers. However, specific First published 2018 legal advice should always be sought from experienced local advisers. Third edition Lexology Getting The Deal Through gratefully acknowledges the efforts of all the contribu- ISBN 978-1-83862-343-2 tors to this volume, who were chosen for their recognised expertise. We also extend special thanks to the contributing editor, Behnam Dayanim of Paul Hastings LLP, for his continued assis- Printed and distributed by tance with this volume. Encompass Print Solutions Tel: 0844 2480 112 London May 2020 Reproduced with permission from Law Business Research Ltd This article was first published in June 2020 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2020 Contents Introduction 3 Nigeria 45 Behnam Dayanim Yahaya Maikori and Osayamen Ojo Paul Hastings LLP Law Allianz Australia 4 Norway 50 Jamie Nettleton and Samuel Gauci Brede A Haglund and Alexander Mollan Addisons Brækhus Advokatfirma Brazil 10 Poland 56 Lucas Tavares Bueno, Rafael Gagliardi and Piotr Dynowski and Michał Sałajczyk Gabriel da Câmara de Queiroz Bird & Bird LLP Demarest Advogados Spain 63 Germany 16 David López Velázquez Dr Michael Stulz-Herrnstadt and Christoph Engelmann Uría Menéndez DLA Piper Switzerland 69 Japan 22 Andreas Glarner, Alexandra Körner and Stefanie Fuchs Takashi Nakazaki MME Legal Tax Compliance Anderson Mori & Tomotsune United Kingdom 74 Malta 28 Jessica Wilson Malcolm Falzon Harris Hagan Camilleri Preziosi United States 83 Mexico 38 Behnam Dayanim, Holly S Flynn and Kathryn P Harris Carlos F Portilla Robertson and Iván Guerrero Sánchez Paul Hastings LLP Portilla Ruy-Diaz y Aguilar SC 2 Gaming 2020 © Law Business Research 2020 Australia Jamie Nettleton and Samuel Gauci Addisons GENERAL LEGAL FRAMEWORK provided to Australian customers where there is an Australian customer link – that is, where a service is provided to a person located in Australia. Legal definition of ‘gambling’ 1 What are the legal elements required for an activity to be Age restrictions regarded as gambling? 3 What is the minimum age for participating in lawful gambling? In order for an activity to be regarded as gambling under Australian law, The minimum age for lawful participation in gambling activities, the activity must generally involve all of the following elements: including opening an account with a gambling operator, placing a bet • the staking of money or any other provision of consideration of with a gambling operator, placing a bet in a licensed venue and being real-world value (the consideration element); employed by a gambling operator, is 18 years. • the outcome of an event determined by an element of chance or mixed chance and skill (the chance element); and Penalties • the purpose of winning a prize (the prize element). 4 What are the penalties for offering unlawful gambling? If an activity does not involve one or more of the above elements, it Penalties for offering, providing or facilitating the provision of unlawful is unlikely to be considered gambling. However, in some cases, it is gambling services vary between the states and territories, and depend unclear if a particular type of activity falls within the scope of this defini- upon the seriousness of the offence. It is outside the scope of this tion. This issue often arises in relation to social games. For example, it is chapter to outline the complete framework of liability for the various unclear under Australian law if: offences that exist under Australian law, however, generally, penalties • in-game purchases offered in the course of free-to-play games are much lower for contravention of the state and territory laws than satisfy the consideration element; and under the federal law, ie, the IGA. • additional play prizes, and other prizes that do not have real-world Penalties for contravention of the IGA are significant: for an indi- value, satisfy the prize element. vidual up to 5,000 penalty units per day for a criminal offence (equivalent to A$1.05 million) or up to five times that for a corporation (equivalent Remote activity to A$5.25 million) and, for an individual, up to 7,500 penalty units per 2 With respect to remote or other cross-border activity, where day for a civil offence (equivalent to A$1.575 million) or up to five times is the wager deemed to take place? that for a corporation (equivalent to A$7.875 million). Liability for an offence under the IGA may also be extended to, for example, directors Australia is a federation in which legislative power is divided between the and officers, agents, and business-to-business service providers. federal government and the eight states and territories. Each state and territory retains the power to make laws regulating gambling conducted 5 Does the law penalise the gambler directly for participating in within its jurisdiction. However, under the Australian Constitution, unlawful gambling? which provides for the freedom of interstate trade, gambling opera- tors that offer online services under a licence issued in one jurisdiction At the state and territory level, liability is generally placed on the are permitted to offer their services to customers in other states and person or company providing the gambling service, rather than on the territories. customer for participating in the relevant services. In limited circum- In relation to cross-border gambling in Australia, a bet will be stances, liability will be placed on the individual; however, from a policy considered to have been made in the jurisdiction in which it was received perspective, we consider that it is unlikely that a regulatory authority and processed by the gambling operator. For example, a bet placed by would prosecute an individual under these provisions. a person in South Australia will be deemed to have taken place in the Northern Territory if it is received and processed by a bookmaker in the Social and non-profit gambling Northern Territory. This principle was upheld by the Federal Court in 6 Are there exceptions for social gambling, or charitable or The State of Victoria v Sportsbet Pty Ltd [2012] FCAFC 143. For some non-profit gambling? purposes, the location of the consumer will also be relevant (eg, in order to calculate the point of consumption taxes payable by a gambling Gambling will be unlawful unless provided under a licence issued by an operator). Australian regulatory authority. However, exceptions from the require- However, under the Interactive Gambling Act 2001 (IGA), which is ment to obtain a gambling licence are provided for in most states and the federal legislation that governs the provision of offshore gambling territories for specified activities (eg, raffles, bingo, football tipping, services to Australian residents, gambling services will be deemed to be sweeps and lucky envelopes), where those activities are conducted 4 Gaming 2020 © Law Business Research 2020 Addisons Australia for fundraising purposes (eg, to benefit the community or charity) in Significant penalties apply for a failure to comply with AML/CTF laws accordance with a permit issued by the relevant regulatory authority. (see ‘Recent cases’). Free-play games of chance for the promotion of trade, known as trade promotions, are also permitted, provided that certain conditions LAND-BASED GAMBLING are met. With reference to social gambling, see ‘Regulation’. Types Regulatory authorities 9 What types of land-based gambling are permitted in your 7 What entity regulates land-based and remote gambling, and jurisdiction, and is gambling regulated at a national or what are the regulator’s powers? subnational level? The key regulators in each jurisdiction are: Land-based gambling is

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