The Dutch Gaming Authority (DGA) has imposed a fine of EUR 312,500 on online betting operator Mr Green Ltd (Mr Green), which exploits the website www.mrgreen.com, for violating the Dutch Betting and Gaming Act (WOK).
The Dutch online gambling market is still closed, meaning that there are only a limited number of licenced operators. New licences are currently not being granted due to Dutch gambling policy, which is focused on preventing gambling addiction, protecting consumers and preventing possible fraud and crime. A remote gambling bill that promises to alter the Dutch legal environment on gaming was recently placed before parliament, but is not expected to come into force before 2020. Until then, betting operators offering online games of chance in the Netherlands are in violation of (Article 1) WOK, and the DGA can sanction any unlicensed betting operator.
To determine what operators it should take action against, the DGA focuses on games of chance over websites with a .nl extension, gaming websites in the Dutch language, and/or gambling sites that advertise over Dutch media (the so called 'prioritisation' criteria). Since 1 June 2017, the DGA has also focused on websites that specifically target the Netherlands (e.g. by offering payment methods popular among Dutch consumers, such as iDeal, or by failing to employ technology to block certain Dutch IP addresses).
In its investigation, the DGA established that Mr Green offers – among other games of chance – both live casino games and sports betting (including for Dutch competitions), and that it has been unmistakably targeting the Netherlands through its availability for customers with a Dutch IP address, the use of the iDeal e-commerce payment system that is solely used in the Netherlands, Dutch-language customer service, and a job ad for a customer support specialist who speaks native Dutch. In addition, where Mr Green had blocked players from certain countries, Dutch-based players were free to access the site.
Because Mr Green is clearly targeting the Netherlands, the DGA took enforcement action against it even though its offering does not meet all of the original prioritisation criteria listed above.
In response, Mr Green alleged the DGA had unlawfully obtained evidence by transferring funds to a player account on the www.mrgreen.com website, violating the prohibition to engage in unlicensed games of chance. The DGA held that transferring funds is not the same as gambling, and argued that by using this defence, Mr Green was acknowledging that its website is unlawful.
Mr Green also claimed violations of the principles of legal certainty, legitimate expectations and due care since it was not informed in a timely manner of the DGA's amended enforcement policy. The DGA dismissed this argument by stating that Mr Green should have been aware of this amended policy and that no statements from the DGA would justify illegal behaviour.
Mr Green also argued that it would be punished twice for the same offence since this fine would make it ineligible to receive a licence under the upcoming remote gambling legislation. The DGA dismissed this argument by stating that a fine would not preclude Mr Green from obtaining a licence when online gambling is allowed in future.
In addition, Mr Green claimed that by requiring it to use geoblocking software to ban Dutch gamers from its site, the DGA was in violation of EU laws such as the fundamental freedom to conduct business and privacy rules. The DGA could have suggested that the Geoblocking Regulations (EU) 2018/302, that prohibit certain forms of geoblocking, do not apply to online gambling. The DGA, however, countered that it has not set any requirements for parties to use geoblocking, but mentioned it as one option available to betting operators to prevent Dutch customers from visiting their websites. The DGA soundly dismissed Mr Green's argument that Dutch policy on games of chance is not compliant with EU law.
In determining the EUR 312,500 fine, the DGA took into account the seriousness of the legal violation, the number of websites and games offered, and the maximum stakes, withdrawals, bonuses and promotions included in these games. The DGA also considered it relevant that the general conditions for games were not transparent and in its determination not sufficiently clear to users.
Mr Green can roll the dice and appeal this decision with the DGA and the District Court, but it is not clear whether such an objection would be successful since Mr Green did not contest most of the DGA's factual findings. What is infinitely clear: enforcement actions by the DGA against online operators may be rare, but the ruling against Mr Green should serve as a warning to all online gaming platforms that focus on the Dutch market.
For more information on this eAlert, please contact Rogier de Vrey and Tim Wilms.