The Dutch Gaming Authority (DGA) has imposed a fine of EUR 400,000 on online betting operator TSG Interactive Gaming Europe Limited (TSG), part of the Stars Group, for illegally offering online games of chance in the Netherlands by exploiting the website pokerstars.eu.
TSG offered poker games to customers via pokerstars.eu. According to the Supreme Court, poker is considered a game of chance in the Netherlands and it is currently still prohibited to offer online games of chance to Dutch residents. Therefore, TSG was fined. Recently, the Dutch government adopted the Remote Gambling Act which allows for online offering of poker, casino games and fixed odds sports betting. This new legislation is expected to come into force at the end of 2020 or beginning of 20211. Until then, the DGA is taking action against operators who specifically target Dutch consumers via gambling websites. This has led to numerous sanctions in the last couple of months for – amongst others – William Hill, Unibet and bwin2. As a consequence, these sanctioned operators will not immediately be able to acquire a Dutch licence when the market opens because the legislator chose to introduce a so-called “blackout period” of two years during which no licence will be granted to operators who have actively and specifically been (illegally) targeting the Dutch market.
Enforcement actions based on 'prioritisation' criteria
To determine which operators the DGA should target, it has developed some so-called 'prioritisation' criteria. These criteria indicate that the DGA will, generally, focus on gaming websites that use a .nl domain, are in the Dutch language, advertise through Dutch media, offer certain payment methods popular among Dutch consumers (such as iDeal), and/or that fail to employ technology to block Dutch IP addresses (geoblocking).
Recent sanctions from the DGA demonstrate that especially iDeal is often used by sanctioned operators and probably a reason why the DGA took enforcement actions. In its investigation into Unibet and TSG, the DGA also requested the payment service provider of these operators for information about the payment transactions. In both cases, the payment service provider provided information to the DGA although it is questionable whether the payment service provider had – under all circumstances – an obligation to do so.
In its investigation into TSG, the DGA established that pokerstars.eu was – at least on 26 July 2018 and 10 January 2019 – accessible via a Dutch IP address and offering games of chance to Dutch residents. The website on both occasions had a own subpage for two famous Dutch poker players (part of "Team Pokerstars Netherlands") and provided details of two Dutch addiction care organisations. The website also published a list of countries that may not use the website but the Netherlands was not included in this list. On 26 July 2018, the website showed a vacancy for a "Customer Services Specialist - Dutch - Day Shifts" and the website allowed customers to use iDeal as a payment method as well as to download a contact form in Dutch. Information received from the payment service provider demonstrated that 255,000 iDeal transaction took place with payments from or to 33,000 unique Dutch bank accounts between 14 July 2018 and 29 August 2018. According to the DGA, this led to the conclusion that pokerstars.eu was undeniably targeting the Netherlands.
By offering these games of chance to Dutch residents, TSG infringed the Dutch Betting and Gaming Act (WOK) and was therefore fined EUR 400,000. In determining the amount of the fine, the DGA took into account the seriousness of the violation, the number of websites and games offered, the amount of prizes that could be won, and the maximum stakes, withdrawals, bonuses and promotions included in these games.
The decision is bad news for TSG, especially because it is questionable whether an appeal (if any) will lead to a different conclusion, as the Dutch courts have until now consistently ruled that the enforcement policy of the DGA is reasonable and acceptable. As mentioned above, this decision is likely also to prevent TSG from acquiring a licence when the Dutch online gambling market opens.
1. Please find our recent article about the draft secondary legislation respect of Dutch Remote Gambling Act here: https://www.cms-lawnow.com/ealerts/2019/08/draft-secondary-legislation-in-respect-of-dutch-remote-gambling-act-published.
2. Please read our recent publication about the Unibet and bwin sanction here: https://www.cms-lawnow.com/ealerts/2019/09/dutch-gaming-authority-sanctions-bwin-unibet-and-takes-action-against-affiliate-marketing-websites