EUROPEAN UNION
Impact on online gambling Recital 32 of the DSA addresses online gambling and betting services: the applicable Union or national law on the basis of which those orders are issued may impose additional obligations and should be the basis for the enforcement of the respective orders. In the event of non-compliance with such orders, the issuing Member State should be able to enforce them in accordance with its national law. The applicable national law should be in compliance with Union law, including the EU Charter of Fundamental Rights 3 and the Treaty on the Functioning of the EU (TFEU) provisions 4 on the freedom of establishment and the freedom to provide services within the Union, in particular with regard to online gambling and betting services. Similarly, the application of such national laws for the enforcement of the respective orders is without prejudice to applicable Union legal acts or international agreements concluded by the Union or by Member States relating to the cross-border recognition, execution and enforcement of those orders, in particular in civil and criminal matters. The enforcement of the obligation to inform the relevant authorities about the effect given to those orders, as opposed to the enforcement of the orders themselves, should be subject to the rules set out in this regulation (DSA). DSA further defines a number of provisions that could potentially be beneficial in the fight against illegal online gambling. These include an improved notice-and-action mechanism which will enable all users to flag up illegal content online, an introduction of the concept of “trusted flaggers” whose notifications of illegal content would need to be addressed with priority, and enhanced consumer protection and know- your-business-customer requirements. Trusted flaggers are defined as “independent entities which will identify and notify illegal content to online platforms”. Online platforms will have to react to their notifications with priority and without delay. This concept could become a
powerful tool for on-line gaming and betting providers when tackling illegal content online. Several EU lotteries are already preparing to apply for the status of »trusted flaggers«, awarded by the Digital Services Coordinator. The DSA imposes an obligation on hosting service providers to put in place “notice and action” mechanisms enabling individuals or undertakings to notify them of illegal activity or content. The DSA could therefore improve the efficiency of the fight against illegal online gambling offers and advertising, by allowing anyone to contribute through the “notice and action” mechanisms to make the Internet safer for players. The current absence of an obligation on service providers to verify the identity of their business customers, and their resulting anonymity, make it nearly impossible to bring civil or criminal actions to stop online harms. Know your business customer (KYBC) obligations could become be a powerful tool in tackling illegal content effectively online. Further, the DSA strictly prohibits advertising targeted towards minors, complementing the existing absolute bans on gambling by minors and on gambling advertisments targeted at them in all EU member states. In conclusion: the proposed DSA is intended to be “a horizontal framework for all categories of content, products, services and activities on intermediary services” 5 . This horizontal framework legislation does not address every concern online but rather builds the foundation and should be complemented by vertical and sector-specific initiatives where needed. Preparing for the new DSA requirements will take considerable effort and investment, as well as technical and human resources that gaming and betting businesses should anticipate today, rather than tomorrow. Failure to comply with the DSA may result in fines of up to six percent of annual global turnover. Smaller breaches, such as the provision of incorrect or misleading information to regulators, may result in fines of up to one percent of annual turnover.
JAKA REPANSEK Founder RePublis Media & Gaming For information contact jaka.repansek@republis.si
3 https://commission.europa.eu/aid-development-cooperation-fundamental-rights/your-rights-eu/eu-charter-fun- damental-rights_en 4 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT 5 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52020PC0825&rid=2
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IMGL MAGAZINE | JANUARY 2023
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