The Polish Regulator has published the wording of the proposed amendment to the Polish Gambling Act. If enacted, it will come into force on 1 January 2017. In subsequent posts, I will highlight the most interesting changes and provide some comments.
The new amendment changes or modifies the definitions of gambling games. Namely, it provides that: “Gambling games include games of chance, betting, card games, gaming machine games, and games operated through the Internet.” This means that card games are no longer considered as games of chance but as a separate type of gambling. In addition, a new category of gambling is specified – games operated through the Internet.
What is missing in this definition is a clear indication that not all games of chance, betting, card games, gaming machine games, and games operated through the Internet are considered as gambling, but only those which meet the conditions of a given gambling game set forth in the Gambling Act.
In practice, the new definition may create a risk that in the case of any game of chance, betting, card game, gaming machine game, and game operated through the Internet, there will be a general presumption that it constitutes regulated gambling and it will be up to the Regulator to decide (and subsequently the court to verify) whether it falls outside the scope of gambling regulated by the Gambling Act.
What are the changed definitions of particular types of gambling games?
First is the new definition of game of chance. Under the proposed amendment: “Games of chance are games where money or items are won; their outcome depends on chance.” What is new here is that the outcome of the game must depend on chance and not “in particular” depend on chance, and also there is no longer a reference to the rules of the game as a condition for it to be considered as a game of chance. My interpretation of this amendment is that it will now be clear that the outcome of the game must mainly depend on chance for it to be regarded as a game of chance regulated by the Gambling Act. As such, I find this amendment positive.
Card games have been deleted from the list of games of chance and the definition of audiotext lotteries has been modified.
Under the new definition, card games are blackjack, poker, and baccarat, where these are played for cash or material prizes. A card game is also a game whose rules correspond to the rules of blackjack, poker or baccarat. This means that if there are no cash or material prizes, a given card game will not be regarded as a gambling game.
The definition of audiotext lotteries has been refined and now states that it is a lottery in which one participates by means of paid: a) telephone call; or b) sending text messages using the public telecommunications network, and the entity organising the lottery offers cash or material prizes. Under the current definition, text messages can be sent free of charge and the lottery can still be classified as an audiotext lottery.
When it comes to betting, the new amendment clarifies that bookmaking is the placing of bets to win cash or material prizes which involves guessing the existence of various events, including virtual ones, in which participants pay stakes and the amount of the winnings depends on the ratio – agreed between the operator taking the bets and the stake payer – of the payment to the win. A new element here is the inclusion of virtual events.
The new amendment modifies the definition of gaming machine games. They will be understood as games on mechanical, electromechanical, or electronic devices, including computers, in which the game contains an element of randomness and meets, in addition, at least one of the following conditions: 1) it is carried out for commercial purposes; 2) it enables the winning of cash prizes; 3) it enables the winning of material prizes; 4) it enables a win which allows the prolongation of the game without the need to pay a stake for taking part in it; or 5) it enables the starting of a new game by using the material prize obtained in the previous game. This new definition is so broad that – depending on its practical interpretation – it may result in a situation in which every electronic or computer game in which there is any random factor and any prize (cash, a material prize, or virtual points enabling the prolongation of the game or the starting of a new one) may be classified as gambling.
In addition, there will be a new definition of games operated through the Internet. These will include: betting, card games, games of chance, and gaming machine games, whose rules correspond to the rules of games of chance and gaming machine games.
I assess as positive the fact that it will still be the Regulator (the Minister of Finance) who decides (by issuing an administrative decision, upon a motion or ex officio) whether a game or betting that has the features referred to in the Gambling Act is a game of chance, betting, a card game, or a gaming machine game within the meaning of the Gambling Act. An operator may challenge this decision in administrative courts. However, no such decision will be issued, where the nature of games with the use of a particular device was established as a result of an inspection carried out by the authorities of the Customs Service under separate regulations. In practice, this may mean that any finding of the Customs Service will become binding unless questioned in the course of the inspection.
The Polish language version of the amendment can be found under the following link.