The Dutch Gambling Authority (Kansspelautoriteit “KSA”) has imposed a fine of € 400,000 on an operator based in Malta for the offering of online poker games. The Dutch Supreme court already ruled in 1998 that poker is a game of chance. It is thus subject to the Dutch Gaming and Betting Act (“DGA”), under which remote gambling is illegal. The KSA has investigated the operators’ website twice (mid 2018 and early 2019). A couple of the noteworthy elements of the decision are summarized below:
As in many KSA-decisions, the KSA emphasizes that the prioritization-criteria are merely criteria to prioritise enforcement actions. Operators cannot rely on these criteria as an exemption from enforcement if none of the criteria apply to an operators’ offering.
- In this context, the operator argued that during several meetings, conferences and other events since 2012, up until today, the KSA and Ministry of Justice created the impression that enforcement against operators that do not actively target the Dutch market, would not be enforced against. The KSA refutes this.
- Also, the KSA mentions the addition of more prioritization criteria in June 2017, as a sign that it should have been clear to everyone that no exemption or relaxation of enforcement actions was suggested.
- Furthermore, the KSA mentions its own 2019 enforcement agenda, which states the following: “The KSA wants to curb the illegal online gambling offering and diminish the visibility of such offering for the Dutch consumer“.
The KSA also considered that the following factors inter alia, evidenced the targeting of the Dutch market/consumer.
- Accessibility. It was possible to reach the .eu website from a Dutch IP-address.
- iDeal-transactions. The KSA obtained information from the relevant payment service provider about the amount of iDeal transactions in the timeframe 14 July 2018 – 29 August 2018. After initial objections from the PSP, the KSA requested such overview again in March 2019 and obtained such overview, which showed 255,000 iDeal-transactions in this timeframe.
- Vacancy for Dutch customer service personnel. In its first inquiry, the KSA found a vacancy for a Dutch-speaking customer service representative. The operator argued that such vacancy was intended for the Dutch-speaking Belgian public. Furthermore, the operator argued that on the Dutch language website did not allow for playing gambling games on the website. The KSA refutes this argument by stating that the Poker software was available for download from that website. The KSA finally reasoned that if the Dutch version of the website was intended for Dutch people outside of the Netherlands, other measures should have been taken to prevent Dutch players in the Netherlands from playing (e.g. geoblocking, in general, is mentioned in this regard as a suitable measure).
- Team Netherlands poker players. The operators’ website mentioned two Dutch players of the poker team representing the Netherlands on behalf of the operator.
- Reference to Dutch addiction clinics. Under reference of the heading “Need help, advice or counseling?”, two references to two Dutch addiction clinics were included on the website.
- Netherlands not mentioned in list of non-supported jurisdiction. The terms and conditions listed several jurisdictions of which inhabitants were excluded from play. The Netherlands was not included on such list
Another interesting element is that in the operators’ Annual report, the following sentence has been included: “Is has been debated whether the BGA (DGA) also applies to gambling provided via the Internet and if is also applicable to actions taken outside of the Netherlands.” In response of this, the KSA cites case law from 2005 and 2015:
(i) that indicates that the offering of remote gambling in the Netherlands is prohibited, without regard as to from which country such offering takes place (2005); and
(ii) that the law stipulates, in neutral terms, that offering the possibility to participate in gambling in the Netherlands without a licence is prohibited, and nothing in specific regarding the way of offering is further defined in article 1 (a) of the DGA (2015). This means that applicability of this provision cannot, by definition, be excluded in relation to offering games of chance in ways that were not envisaged at the conception of this provision.
This decision is yet another decision in a relatively short time span, in which a high fine is imposed on large payer in the industry. The decision can be appealed within six weeks after the date of the decision (3 September 2019).