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GBGA to target taxation after licensing challenge fails
GEORGE OSBORNE CAN EXPECT TO SEE A LEGAL CHALLENGE ON THE HORIZON
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LEGISLATION
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report commissioned by the Advertising Standards Authority (ASA) has suggested that the British public are broadly happy with gambling advertising and how it is regulated and that there is no need for any further restrictions. In a report that will no doubt be sidelined by those wanting further curbs on gambling advertising, the Research Works authored piece found: “There was resistance to the idea that advertising for gambling should be specifically targeted for constraint, given that people believed there are many other more obviously dangerous activities which are present in the TV universe (including violence, sexual behaviour and alcohol, all of which are felt to be represented in a wide range of advertising).” The wider review has identified some advertising issues that warrant further consideration, including concerns over whether gambling sales promotions are always clearly and accurately advertised indeed, how ‘Free Bet’ promotions operate looks likely to come under greater scrutiny going forward. There was also an issue, seemingly raised by the ASA itself, about whether some ads indirectly feature themes that link gambling to toughness, resilience and recklessness (all of which are prohibited by the rules). As part of this there appears to be some worry over the use of the phrase ‘bet now’ as a call to action, which the ASA seems keen to address. In fact, the ASA wants to take more proactive steps to challenge potential breaches of the rules not raised by complainants ASA chief executive Guy Parker said: “We’re pleased our decisions are in line with people’s opinions but we’re not complacent: there are areas we need to examine further as part of our commitment to ensure every UK ad’s a responsible ad.”
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While the GBGA’s challenge to point of consumption (POC) licensing delayed implementation for a month, it is in place now. he UK remote gambling industry is now, belatedly, operating under a point of consumption regime after the High Court emphatically threw out the claims that the new legislation was unlawful. Despite Mr Justice Green rejecting the Gibraltar Betting and Gaming Association’s argument as a ‘clear cut case’, the GBGA seems unperturbed and is fashioning a second high court challenge, this time against the point of consumption taxation measures in the Treasury’s Finance Act 2014. Again, with this due to be implemented on 1 December, it is another race against the clock for everyone’s legal teams. It is unlikely that the Treasury will be as flexible as the DCMS was in postponing its implementation. Justice Green unceremoniously dismissed the GBGA’s case against the new licensing regulations. He said that the point of consumption regime was ‘neither disproportionate, nor discriminatory, nor is it irrational’. He added: “The new regime serves a series of legitimate objectives.
Public not concerned over gambling advertising
There is no reason to doubt Parliament’s judgement that it will achieve a reasonable degree of effectiveness and there is no proper basis for concluding that it is or will be discriminatory in its effects. Further, I reject the submission that the new regime will create perverse incentives and lead to the creation of an illicit market of unscrupulous service providers.” He also dismissed the suggestion that POC was unenforceable. “First, there is no evidence or reason to believe that there will be a major enforcement problem. Secondly, even if there are limitations in the enforcement regime, the government and Parliament were entitled to take the view that the suite of enforcement powers available to the GC would be sufficient, at least in large measure, to meet the licensing objectives. Thirdly, the government has acknowledged that if and insofar as this proves not to be the case that it would review the law and take steps to strengthen enforcement powers.” Perversely it seems that his judgment is what has encouraged the GBGA’s legal team to target the tax regime. Justice Green
freely quoted EU case law, repeating that measures restricting the freedom to provide services cannot be justified ‘on purely economic grounds’. He also mentioned that there was no precise boundaries for this test and as such suggesting that a challenge to the Finance Act would not be so ‘clear cut’ as this one. Another interesting by-product of the new point of consumption laws are the number of operators closing their doors to markets where the regulatory regime is grey at best. The now Amaya Gamingowned PokerStars withdrew from more than 30 countries last month, while other smaller operators pulled out of similar markets across Africa, Asia and the Middle East. Other operators reportedly exiting markets include PKR from Italy and Bet365 from Romania. The UK Gambling Commission’s licence requirement for operators to justify the international markets in which they generate more than 3 per cent of revenues has caused most of this concern, although it is unclear as of yet if the regulator would be taking a hard line on this subject.
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