Is it legal to gamble online using your mobile phone?

In September 2006 the US government enacted the Unlawful Internet Gambling Enforcement Act ("UIGEA").  UIGEA represented the United State's first piece of federal legislation attempting to address the issue of internet gambling. 

UIGEA called on United States Treasury and Federal Reserve Board, in consultation with the Department of Justice to put in place regulations to require payment processors to block all transactions pertaining to 'unlawful internet gambling'.  The intent of the legislation is to prevent the like of VISA, Mastercard, banks and the various virtual wallet services from facilitating payments between US residents and offshore online gambling operators, thus preventing Americans from being able to access offshore casinos and sports books.

One of the key operational failings of the legislation is that it actually does not define what 'unlawful internet gambling' is.  This determination is left to the agencies charged with UIGEA's enforcement and they have openly stated that they don't have the resources or ability to make this determination.  So their regulations simply impose this burden on the payment processors...who are even less qualified or willing to make the determination. 

While the legislation has had the effect of dissuading some of the world's larger online gambling operators from accepting American customers (Ladrokes, Microgaming etc) its real effects on the regulation of payments pertaining to online gambling have been limited to say the least.  In fact, the final regulations put into effect by the relevant agencies call for additional code numbers for credit card transactions but expressly tell financial institutions to not spend any time looking at individual transactions.

All confusion and enforcement failings aside, it is worth noting, from a player perspective, that UIGEA, does not in any way target players.  As stated by often cited US gambling expert Professor I. Nelson Rose, “no United States federal statute or regulation explicitly prohibits online gambling, either domestically or abroad.”  The UIGEA by its own terms it does not apply to individual gamblers.

It is also worth noting that as at May 2009, in the face of mounting local and international ridicule as well as formal criticism from the European Commission as an infringement of the free movement of capital as laid down in article 56 of the EC-Treaty, moves are afoot to have UIGEA repealed and replaced with an alternative regulatory framework.

The legal position in the UK pertaining to online gambling, including mobile casino gambling is both very different and also a lot clearer than the US position.

The recently enacted Gambling Act 2005 ("The Act") came into effect in 2007 and provides an all encompassing piece of legislation governing all forms of gambling in the UK (the only exceptions being the National Lottery and Spread Betting) including what The Act terms "Remote Gambling" which is defined to include casinos, sports betting, poker rooms and any other form of real money wagering online or via mobile telephony devices.

The Act is regulated by the newly formed UK Gambling Commission and its key operative provisions relating to remote gambling are as follows:

• Any operator of a remote gambling service with servers or any other remote gambling equipment located in the United Kingdom must obtain a license from the UK Gambling Commission to be able to offer that service to UK residents or abroad;

• Operators of remote gambling services that are based outside the UK are free to offer their services to UK residents provided they are in compliance with the licensing requirements of the jurisdiction in which their service is hosted;

• Nothing in The Act makes it illegal, or seeks to prevent, British residents accessing and using remote gambling services;

• Remote gambling service operators licensed in the UK, Gibraltar,  EEA countries (European Economic Area) and any other jurisdictions granted white listing status by the UK Gambling Commission are free to advertise their product with Great Britain via the mainstream media.

Not surprisingly, the UK has become somewhat of an internet gambling hub, with many of the world's largest operators setting up shop there.  Likewise, players are free to choose where they gamble and have online or mobile options provided by large FTSE listed companies.

Key terms/organizations

Member States of the European Union ("EU Member"): members of the European Union
European Communities Treaty ("EC Treaty"): Constitution of the European Union
European Commission ("EC"): EU executive arm charged with upholding EU member compliance with EC Treaty
European Court of Justice ("ECJ"): Adjudicates EU member compliance with EC Treaty law
Member State of the European Economic Area ("EEA Member"): members of the EEA
European Free Trade Association ("EFTA"): Charged with upholding EEA member compliance with EC Treaty
European Free Trade Association Court ("EFTA Court"): Adjudicates EEA member compliance with EC Treaty law

Europe Union ("EU") Overview

One of the key principles of the EC Treaty is known as the 'four freedoms'.  One of these freedoms is the freedom to provide services, and is set out at Article 49 of the EC Treaty.  Article 49 provides that, "Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited...".

Both EU Members and EEA Members are obliged by EU law to comply with the 'four freedoms' and of particular relevance to this discussion, the freedom to provide services.  The clear intent of the freedom to provide services provisions are to foster free trade between EU and EEA members. 

To do this, the law prohibits an EU or EEA member from banning the provision of any services to its residents by another EU and EEA member operator where those services are provided by local operators.  In essence it is an anti protectionism law.  It doesn't prevent an EU and EEA member banning a particular service on moral or ethical grounds so long as this is a blanket ban applying to local operators as well.

Given this overriding requirement for European countries to allow services from foreign operators it is curious to note that some have passed laws banning foreign online gambling operations despite running local internet gambling (lotteries etc) monopolies.  However where those bans are a contravention of EU law because of a breach of freedom of services provisions they are operationally ineffective.

Both Germany and France are cases in point and both have had to answer to the EC.  Over the past three years, the EC has been associated with Internet betting-linked infringement proceedings against 10 EU members on the basis of the “freedom of movement of services” pillar of EU law. 

For its part, France has recently revealed plans to open up its Pari Mutuel Urbain monopoly to competition in 2010.  France presented a draft bill in March 2009 that will open their market to online gambling and offer licenses to operators.  French Budget Minister Eric Woerth was quoted as saying that the gambling market in France would be expanded to adapt “to Internet reality” and help France “get out of an unsustainable situation in which the state is losing a growing part of the betting market”

A number of EU and EEA members have either foreshadowed, or are in the process of drafting online gambling specific legislation.  These include Sweden, Switzerland, Norway and Ireland.  Given the French experience they will be wise to ensure compliance with the freedom to provide services requirements of EU law.

As in the US and Australia, is should be noted that any EU or EEA member laws regulating or banning online gambling (whether in breach or compliance with the EC Treaty) are aimed at operators and not players.

      Complete list of EU members:

      Complete list of EEA members:

• All EU members plus...

Australia was one of the first countries to have internet gambling specific legislation enacted.  The Interactive Gambling Bill 2001 ("The Bill") became law on June 2001. 

The Bill's key operative provisions:

• Render it illegal for any 'interactive gambling service provider' (including online/mobile casinos, sportsbooks, race betting sites, lotteries etc) not holding an Australian interactive gambling license to offer its product to Australian residents;

• Render it illegal for any Australian licensed online/mobile casino to offer its product to:
  a) Australian residents, and
  b) residents of any country around the world that chooses to opt in on the Australian Government’s ban;

• Render it legal for Australian licensed online sports books, race betting and lottery sites to offer their product to Australian and international customers;

• Render it illegal for Australian licensed online sports books to offer 'in-play' bets to Australian residents.

• Makes the advertising of any interactive gambling service on any medium within Australia (including ‘Australian’ web sites) illegal;

One of the stated purposes of The Bill was to prevent Australians from from accessing offshore online gambling sites and thus protect both local licensed operators as well as problem gamblers.  The effectiveness of the law in practice has been questioned since it was revealed in a recent study that hundreds of thousands of Australians have gambled at online casinos, sport books or poker rooms based offshore.  Further, local sports betting operators have complained that 'in-play' restrictions they are subject to make it difficult to compete with offshore competitors and now the government is considering amending this provision of The Bill.

From a players perspective the important fact is that The Bill in no way renders the act of of gambling online with an offshore interactive gambling service provider illegal.  Players are free to play where they choose and this includes on their mobile phone.

Looking to the rest of the world, most countries are yet to pass legislation specifically governing online gambling.

Some have passed laws banning online gambling, and the nature of the ban varies significantly from one case to the next, from outright blanket bans of all gambling activity to restrictions on offshore operators from offering services to local residents.  And of course the other issue arising out of any ban, as the US and Australia have found, is the question of its effective enforcement.

In any case, set out below is a list of countries that, according to Google Answers, have legislated to ban online gambling in some way shape or form.  As in the above cases it is likely these 'bans' target operators and not players.