Lack of clarity on online gambling - Monday 11th of December 2006

Pretoria High Court judge Willie Hartzenberg this week granted the Gauteng Gambling Board a declaratory order, banning online gambling – other than bookmaking – in the province. But the position elsewhere is less clear, says ICT lawyer Lance Michalson.

“The judgment does not go so far as to say online gambling in the whole of SA is illegal. It only says online gambling in Gauteng is illegal unless the casino obtains a licence from the Gauteng Gambling Board,? Michalson says.

“Remember that each of the nine provinces have their own Acts in terms of which each provincial licensing authority has exclusive jurisdiction within its province to issue provincial licences in respect of casinos, gambling, etc.

“Only the Western Cape and Eastern Cape Acts deal explicitly with the concept of online, interactive or Internet gambling. There is currently no certainty with regard to the applicability of the remaining Provincial Acts to Internet gambling. That uncertainty remains, as does the status of online gambling in the other provinces which dont have provincial legislation.?

The Gauteng Gambling Board afterwards hailed the courts decision as “groundbreaking?. In a statement, the board warned gamblers, banks and Internet providers who advertised or facilitated online gambling that they can be prosecuted for contravening gambling laws. Anyone found guilty can be fined up to R10 million or imprisoned for not more than 10 years – or both.

Internet Service Providers Association (ISPA) regulatory advisor Michael Silber says the Gauteng Gambling Board may have issued too wide a threat. He says there is no law that requires ISPs to block, or otherwise restrict access to online gambling.

No ISP judgment

“Similarly, to date there has been no court judgment requiring ISPs to do so,? he says. In fact, the Electronic Communications and Transactions Act specifically states there is no general obligation on an ISP to monitor the data which it transmits or stores, or to actively seek facts or circumstances indicating an unlawful activity.

“As such and until a court judgement or law states otherwise, there will not be any significant effect on ISPs,? he says.

Regarding advertising, Silber says online casinos, international lotteries and other Internet gambling operators have to date advertised with impunity. But the National Gambling Act provides that "a person must not advertise or promote...any gambling activity...that is unlawful in terms of this Act or applicable provincial law".

Similarly, the Gauteng Gambling Act provides: "No person shall, by way of advertisement or with intent to advertise, publish or otherwise disseminate or distribute any information concerning gambling in the province in respect of which a licence in terms of this Act is not in force."

Silber says it is unclear if these sections only prohibit the advertiser placing advertising, or if it covers both the advertiser and the advertising media (radio, print television or Internet).

“ISPAs view is that this provision of the National and Gauteng Gambling Acts must be interpreted restrictively, so as only to apply to the person or entity placing the advertising,? Silber adds.

“Nevertheless, some more cautious media organisations may choose to decline advertising for online gambling in the media under their control. There are a few ISPs that host an information portal for their subscribers and they may choose to decline future advertising of this nature from such a portal. ISPs cannot force their customers to remove such advertising from the customers Web site without a court order.?

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