The uncertain world of in-flight gambling
In 2005, one audacious airline CEO went on the record and said that in the near future, profits from in-flight gambling could enable airlines to offer free airfares for all passengers. The same year, Virgin’s CEO, promising to deliver a fleet of Airbus A380s featuring mini-casinos, quipped "With double beds and a casino, you will have at least two ways to get lucky”. The message that year was clear: in-flight gambling was going to be the tool to transform the balance sheets of airline operators and pave the way for free, fun-filled flights.
To date, we have not yet seen any in flight casinos go live over our skies (delivery of casino equipped A380s has been delayed until 2013). However gambling in the form of in-flight scratch cards that can be purchased for a few euros alongside duty free goods has certainly become a common feature of European air travel. Some reports estimate ticket sales of between 60 and 140 scratch cards per flight which must make it a very valuable addition to what the airlines call "ancillary revenues". But is it legal?
One of the great difficulties of approaching the issue of legality is the question of what law actually applies to an aircraft. The Chicago Convention1 (to which most major jurisdictions including the UK are party) provides that an aircraft is subject to the law of the country in which it has landed or in whose airspace it is flying. The Tokyo Convention2 (to which most major jurisdictions including the UK are party) applies in respect of offences against penal law and acts which, whether or not they are offences, may jeopardise the safety of aircraft or person or property in them or which pose a risk to good order and discipline on board. The Convention provides that an aircraft in international airspace will be subject to the law of the country in which it is registered. Additionally, it must not be forgotten that there may be concurrent jurisdiction which is extra-territorial, based on the personal sovereignty of a state over its nationals. The legality of gambling on aircraft may therefore depend on the country in which it is registered, the airspace in which it flies, the country in which it lands and even the nationality of an individual passenger. It is, on any view, a confusing picture.
In general, the interplay of these complex rules means that the law applicable to a plane may change several times in the course of a flight. For example, assume a flight from England to Norway. When the plane is on the ground in London, the applicable law is that of England. Once the plane takes off and is more than 12 miles off the coast of England3, the aircraft is in international airspace and the law which applies will be the law of the country in which the plane is registered. Finally, when the plane reaches within 12 miles of the coast of Norway, Norwegian law will become the governing regime.
When this picture is applied to most short haul flights in Europe, it becomes clear that there will not normally be any period in which the plane is in international airspace (the Channel is, for the most part, too narrow, given that both France and the UK each have a 12 mile right). Thus the law governing the plane will change as it travels over different national boundaries to its destination, but it will hardly ever be outside the control of one country's laws or another.
What about long haul flights? These appear somewhat simpler – in that at least the periods spent in international airspace are long enough sensibly to operate some casino gambling. It may even be appropriate to ignore the risks of passing over the territory of some far flung nation on the basis that there is really no reason (whatever the legal niceties) to treat the aircraft as other than "outside" the territory. However, risks remain: mostly in the jurisdictions where the plane will take off and land. For example, the position in relation to in-flight gambling in the US was made very clear by the Gorton Amendment, which introduced section 205 of the Federal Aviation Administration Authorization Act of 1994. This states:
“An air carrier or foreign air carrier may not install, transport, or operate, or permit the use of, any gambling device on board an aircraft in foreign air transportation.”
As a result of this amendment the US prohibits gambling on flights to or from the US that are operated by a foreign airline, as well as on international flights of US carriers and all commercial flights within US airspace. Gambling is prohibited on international flights of US carriers and on commercial flights within US airspace under previously enacted legislation, known as the Gambling Devices Transportation Act.
It might be said that (apart from the US) most country’s authorities may not care what happens in a foreign plane over their airspace, particularly if it is a "victimless crime". However, it should not be forgotten that, in many jurisdictions, the sanctions for breaching gambling legislation include fines and imprisonment and that some of the offences relate merely to the possession of the materials necessary to gamble. One is reminded in particular of s.2 of the LAA 1977 which provides that:
"…every person who in connection with any lottery promoted or proposed to be promoted in Great Britain or elsewhere –
- prints any ticket for use in the lottery; or
- sells, distributes or offers or advertises for sale or distribution or has in his possession for the purposes of sale or distribution any tickets or chances in the lottery… ..shall be guilty of an offence" (emphasis added)
So, in the UK, it appears that the mere possession of scratch cards in amongst the duty free gifts and in-flight vending probably offends the Act (unless, of course, the tickets are part of a Society or local authority lottery sanctioned under the Act). Whilst lottery laws are very different across Europe, the common theme is their restrictive nature and it seems to the author that most if not all of the scratch card promotions currently operated on European flights are probably illegal in one jurisdiction or another (certainly those flying over or landing in the UK face difficulties).
No-one of course, is complaining about these forms of lottery but most appear to be generally unregulated and either make no contribution to charity or a donation which does not correspond to the limits set down under English law. Once again, it appears that External Lottery Managers and others who place themselves under the strictures of regulation, are simply losing out compared to those who ignore the rules. law governing the plane will change as it travels over different national boundaries to its destination, but it will hardly ever be outside the control of one country's laws or another.
The Gambling Act 2005
Will the Gambling Act 2005 clarify matters? Well, at least to some extent. Section 265 of the Gambling Act 2005 deals with the territorial application of lottery law, and narrows the scope of the offences to apply only to those matters which occur "in Great Britain" or which involve people "in Great Britain", a restriction which appears to clarify the position in favour of airline operators. Furthermore, s.360 of the Act provides that a person will not commit any of the principal offences under the Act provided the aircraft is in international airspace at the time when the events occur.
Assuming that the Commission is aware of the prevalence of in-flight scratch cards, it makes little comment on them – and certainly there are no pressure groups or parliamentary committees worrying over them in the way we have recently seen quiz television channels being scrutinized. On that basis, I suspect that we will see few questions, still less complaints, in relation to in-flight scratch cards, at least until the new Act comes into force.
It may be that the murkiness of the current position is what is currently restraining the air operators from investing in more overt forms of gambling such as seat back casino games, whilst still continuing to operate scratch cards – a form of gambling which requires little investment. However, given that almost every aspect of gambling is currently the subject of consultation, draft legislation or other general scrutiny, it would be useful to understand the Commission's interpretation of the new law and whether they intended to take any position on the organisation of unregulated lotteries by UK airlines on aircraft once outside the jurisdiction. With the airline industry constantly looking to ways in which they can keep ticket prices low, but maintain margin, it would be useful to know if the Commission is prepared to give them clearance for take off, or warning of an emergency landing.