Recently Gibraltar welcomed the 4th KPMG e-gaming Summit. The summit has grown in size each year and this year’s was attended by an audience of over 200 delegates that included regulators, remote gambling operators and a range of suppliers (lawyers, accountants, software providers, payments providers, telecoms and data specialists).
The growing popularity of this relatively young summit highlighted just how successful Gibraltar has been at attracting and retaining the most reputable large e-gaming and e-betting operators in the world, reinforcing Gibraltar’s reputation as the EU e-gaming hub and reminding us how much more Gibraltar can still do to communicate its industry success stories and its regulatory reputation in Europe.
High on the summit agenda were the proposed changes to the draft UK Gambling Bill and Finance Bill, now in advanced stages as part of the UK government’s next step in plans to introduce a “point of consumption (POC)” regime to licence, regulate and tax all remote gambling firms supplying the UK market.
The POC proposals suggest UK licensing and regulations will apply to all overseas companies wishing to advertise or offer their gambling services in the UK, and will mean that Gibraltar operators supplying UK customers under their Gibraltar licences must also hold a licence issued by the UK Gambling Commission.
In addition, a gambling revenue tax will now be levied against operators based outside the UK when transacting with UK customers.
Without some significant modification, the current POC proposals will create confused regulatory supervision and market disruption on a worldwide basis. Our concern is that, ultimately, this will benefit unlicensed operators based outside of the European Union, to the detriment of consumers.
In my role as Chief Executive of the Gibraltar Betting & Gaming Association, I have been tasked with representing the Gibraltar industry in discussions with the UK Government and civil servants over the last 18 months. The GBGA has tried to engage in a constructive dialogue with the UK government to ensure that any new legislation actually helps the regulated gambling industry, the government and, most importantly, the consumer. To date we have not met with success in our efforts with the UK and this may leave the industry with little choice but to accept the proposed changes or challenge their lawfulness under EU law.
Given the expertise that exists here, we are well placed and willing to help the UK make the move to a world-leading regulatory environment for online gambling, one which builds on the successes of the EU financial services “passporting model” – which allows licensed operators from suitable jurisdiction to supply the UK based on reliance on their home state regulator and licence – and avoids the UK simply going it alone in a sector that it does not sufficiently understand.
In our view, the POC proposals – which the UK government says are intended to protect consumers and provide a fairer basis for competition – are poorly considered, since they undermine the competitiveness of responsible regulated operators and will be damaging for consumers by fostering a dysfunctional market. From a consumer protection perspective, we believe the UK has failed to establish genuine legal grounds for such a change, and has failed to consider the greater risks to consumers and how best they could mitigate those risks.
To begin with, the POC regime abandons the recognition of licences and local supervision by European jurisdictions, including Gibraltar, and in doing so sets up the UK for both practical regulatory failure and a potential challenge under EU law. For example, under the POC regime operators may be based anywhere in the world, including places with no legal and cultural fit with the UK and Europe, and where UK consumers will have no rights of redress and the UK Gambling Commission will have no effective rights of supervision and enforcement. This will result in an increase in remote tick-box regulatory supervision, with foreign operators obtaining a UK licence to transact with UK consumers but without the UK having any real ability or capacity to properly supervise those operators.
The GBGA also believes the proposals will also result in a large number of UK licensed but entirely unregulated and untaxed foreign operators buying a British licence merely as a “flag of convenience”. Such operators will promote their UK brand in order to supply consumers outside of the UK with gambling services without any UK supervision or taxation.
There is also good evidence of the real danger that consumers will now be captured by black market affiliates and operators, who are able to offer better value as they will not comply with the UK’s POC licensing and taxation regimes. The UK does not currently have a significant unlicensed market for online gambling, largely thanks to the pre-eminence of regulated Gibraltar operators, and the UK appears to have ignored the risks of creating such a market by the introduction of the POC regime.
The situation in other countries mirrors our prediction. In Italy, for example, there is point of consumption licensing and tax regime and the Italian regulator estimates that up to 50 per cent of the market is unregulated. In France, it has been estimated that 70 per cent of sports betting takes place with unlicensed regulators and in Spain, recent figures suggest that unlicensed operators supply 30 per cent or more of the Spanish market.
The UK government’s aims and objectives could be met with a more carefully constructed regime that took better account of the existing regulated online gambling industry that work very well. In this respect, Gibraltar has developed a world-leading, internationally recognised centre of excellence in online gambling, where operators provide customers with a safe and secure environment in which to bet.
The UK consumer has considerable trust in Gibraltar licensed operators. Only a small number of gambling firms have been allowed to obtain a licence here in Gibraltar, and yet we have an estimated 60-80 per cent of all online play or bets of UK consumers.
It is worth highlighting that the UK is currently embarking on a wide range of regulatory reviews in the gambling space, including relating to advertising standards and enforcement, problem gambling and responsible gambling. Whatever the outcome of those reviews, it is clear that the regulated sector will continue to input and comply with any changes to advertising, gambling limits and support for customers with gambling problems. The unregulated sector will ignore such restrictions and protections. Now is, therefore, precisely the wrong time for the UK to introduce a range of measures that may create space for an unregulated online gambling market that could be as high as 30 per cent (if experience on the continent is anything to go by).
As with the globalisation of financial services, effective supervision of e-gaming requires greater cross-border cooperation and recognition. Whilst the EU is taking steps to encourage a more co-ordinated approach to the regulation of online gambling within Europe, unfortunately the UK has decided to implement a model that ignores its own past mistakes and those of other European jurisdictions that have previously introduced impractical regimes that have, as their effect, an increase in unregulated online gambling.
If the UK POC regime is introduced there is no doubt that it will impact us here in Gibraltar. However, we remain positive about the jurisdiction’s continued success. Reputable jurisdictions must ensure that its key stakeholders work hard to understand the realities of those specialist sectors that they regulate, focusing on better effective regulation and on quality above quantity. In my view, Gibraltar continues to get the balance right and remains the best home in Europe for this sensitive area of electronic commerce.
Peter Howitt is chief executive of the Gibraltar Betting & Gaming Association