Gambling in the Netherlands is regulated by the Dutch Betting and Gambling Act (the “Act“). Under the Act, it is prohibited to: “provide an opportunity to compete for prizes or premiums if the winners are designated by means of any calculation of probability over which the participants are generally unable to exercise a dominant influence, unless a licence has been granted therefore, under this law”. It is currently not possible to obtain a licence for remote (online) gambling. As a result, online gambling is currently prohibited in the Netherlands.
The Dutch Betting and Gambling Authority (the “Gambling Authority“) recently investigated whether in-game loot boxes should be considered (online) games of chance. The Gambling Authority concluded that loot boxes should be regarded as games of chance when: (i) the content of the boxes is determined by chance; and (ii) the in-game goods can be traded outside of the game, i.e. the goods have an economic/market value. Because it is currently impossible to obtain a licence for online gambling, offering such loot boxes to Dutch consumers is prohibited under the Act. Loot boxes with in-game goods that cannot be traded outside the game (i.e. have no market value) do not meet the definition of a prize and are, therefore, permitted in the Netherlands.
What does this mean for gamers?
Following on from this investigation, the Gambling Authority received several complaints from gamers that found they were no longer able to sell their virtual items. The publisher of the relevant game confirmed to the Gambling Authority that this is the result of modifications in the game that were made in response to the investigation. The Gambling Authority has pointed out to the gamers that it is not the designated body for these complaints but noted that it would enter into discussions with the publisher, insisting on not unnecessarily constraining players.
Many gamers have also raised questions as to the scope of the Gambling Authority’s investigation. Why were low profile, non-virtual, items such as surprise eggs and playing/football cards not investigated by the Gambling Authority? The Gambling Authority noted that, so far, no signals have been received that addiction problems arise due to the opening of playing card packaging or surprise eggs. This question, however, opens a discussion about where the line must be drawn (and who has authority to draw that line) with regard to perhaps more harmless objects and games of chance (where both are capable of falling foul of gambling regulation).
Aside from the Gambling Authority’s investigation, Loot boxes have also recently come under the scrutiny of the Dutch Advertising Committee, which recently published a decision relating to loot boxes. The Dutch Advertising Committee considered that the advertisement of FIFA18’s new birthday selection loot box was misleading because it was insufficiently clear about the chance of receiving certain items. However, the Dutch Advertising Committee did not give an opinion on whether the loot box qualified as a prohibited (online) game of chance, and instead left this decision to the Gambling Authority.