Website blocking is a controversial, although not uncommon tool for curbing the activity of unlicensed operators targeted at citizens of European Union member states. The Czech Republic introduced this option with the new Gambling Act passed in June 2016 (and effective 1 January 2017). Judicial review of its constitutionality was initiated almost simultaneously targeting the new repressive measures. The Constitutional Court of the Czech Republic issued its decision on the constitutionality of the provisions of the Gambling Act related to website blocking on 22 February 2017.
The Constitutional Court (http://www.usoud.cz/en/) was asked by a group of Senators to assess the constitutional compliance of (and to also repeal) three provisions (Sections 82, 84 and 123(5)) of the Gambling Act – a long awaited law replacing the outdated and problematic Lotteries Act of 1990. The new administrative measure of unlicensed gambling website blocking has been introduced as an obligation of Internet service providers (ISPs) to block websites included on a list of unauthorized online games to be maintained by the Ministry of Finance (the blacklist). Under the Gambling Act, blocking should be applicable to websites allowing access to unlicensed (illegal) gambling games only. So, for example, websites containing only advertisements for illegal games are not to be blocked.
According to the Constitutional court, more than ten European Union member states have introduced some form of a blocking system (Belgium, Bulgaria, Denmark, Estonia, France, Italy, Lithuania, Latvia, Hungary, Portugal, Romania, Greece, Slovenia and Spain). Further member states are currently considering the introduction of similar measures. The particulars of how the systems work, however, vary considerably across jurisdictions.
In the Czech Republic, all ISPs are obliged to block access to all websites listed on the blacklist. They face administrative sanction for failure to do so. According to the group of Senators, the mentioned provisions were, among other things, in conflict with the constitutional prohibition of censorship. They further argued that ISPs cannot bear responsibility for failure of operators of unauthorized online games to acquire regulatory approval of their operations.
The Constitutional Court ruled that all the contested provisions are in accordance with the Czech Constitution. The Constitutional Court found that the prohibition of censorship is not breached, because the purpose of the contested provisions is not to control or restrict freedom of information or expression, but to prevent illegal activities on the Internet, emphasizing legislative history evidence to this fact (declared legislative goals). The transfer of responsibility from unauthorized operators to ISPs was also found constitutional, basically on a proportionality argument. While unlicensed operators usually operate from abroad, and so effective regulatory enforcement against them is difficult, the court noted, the ISPs are easily approachable by authorities and they have the means to fulfill the task. The Constitutional Court literally conceded that blocking was “likely the only effective (although not perfect) solution” in the struggle against illegal gambling operators. Also, interestingly, even foreign ISPs are obliged to block the blacklisted websites if they provide internet services in the Czech Republic, for example via satellite.
The Constitutional Court also noted that all other deficits of the Gambling Act’s provisions in question listed in the complaint lodged (e.g., vagueness of used terminology, ambiguity of legal obligation) have had no constitutional relevance. There is no contradiction in designation of an administrative tort with the specific sanction of website blocking which is rather quick in comparison with other measures.
The decision of the Constitutional Court also cited several CJEU decisions, including in case C-42/07 (Liga Portuguesa de Futebol Profissional v. Bwin International), where the CJEU noted that it is for each member state to determine what is required in order to ensure protection of public interest in the area of games of chance. Therefore, each member state may prohibit operators which are established in other member states from offering games of chance via the Internet within the territory of a particular member state. The Constitutional Court also mentions the landmark CJEU decision in case C-314/12 (UPC Telekabel Wien v. Constantin Film Verleih and Wega Filmproduktionsgesellschaft) concerning blocking of access to websites infringing copyright. Here, the CJEU concluded, in brief, that it is in accordance with EU law to oblige ISPs to block access to websites where copyrights are infringed. According to the Constitutional Court, these findings are applicable also to games of chance.
The Gambling Act remains unchanged. We expect the Ministry of Finance will soon start filling the list with prohibited websites. As of now, we are aware of up to three administrative proceedings already under way in the Czech Republic in respect of placing unlicensed gaming websites on the blacklist. As the first of these proceedings commenced on 24 January, under a normal course of things, we can expect the first website to appear on the blacklist by end of March or beginning of April.