Hostname: page-component-cd9895bd7-fscjk Total loading time: 0 Render date: 2024-12-26T08:44:51.665Z Has data issue: false hasContentIssue false
  • English
  • Français

Minors and Gambling Regulation

Published online by Cambridge University Press:  20 January 2017

Malgorzata (Margaret) Carran
Malgorzata (Margaret) Carran*
Affiliation:
The City Law School, City University London
Get access Rights & Permissions [Opens in a new window]

Abstract

Early initiation of gambling has been argued to be closely correlated with placing players at higher risk of developing problem gambling behaviour in the future. The vast majority of jurisdictions, including Great Britain, attempts to eliminate minors’ access to gambling by making it illegal and by requiring gambling providers to adopt strict age-verification procedures. Despite those measures minors continue to successfully access gambling. This paper demonstrates that British legal framework suffers from many statutory loopholes. It considers weaknesses in the regulatory offences as well as enforcement deficiencies. It further highlights how the differences between black letter law, political rhetoric and practical application undermine the strength of the prohibition of gambling by minors.

Type
Articles
Information
European Journal of Risk Regulation , Volume 4 , Issue 4 , December 2013 , pp. 509 - 520
Copyright
Copyright © Cambridge University Press 2013

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Report of the Gaming Board for Great Britain 2001–2002, p. 4; Presented pursuant to Act Eliz. II 1968 c.65 s.50; ordered by the House of Common to be printed 11th July 2002; available on the Internet at <www.official-documents.gov.uk/document/hc0102/hc10/1016/1016.pdf> (last accessed in November 2013). The liberalising nature of the new legislation is also embedded in the Gambling Act 2005 itself which can be seen by a joint reading of ss. 1, 22 and 72.

2 As identified by Simon Planzer and Heather Wardle “The Comparative Effectiveness of Regulatory Approaches and the Impact of Advertising on Propensity for Problem Gambling”; (2011) report for the Responsible Gambling Fund (currently Responsible Gambling Trust), London available on the internet at <http://ssrn.com/abstract=2045052>, (last accessed November 2013) .

3 S. 1(c) of the Gambling Act 2005

4 It is reported that since 2000 the overall adults smoking rate are declining by 0.4% annually. ASH Fact Sheet on Smoking Statistics, March 2013, available on the Internet at <www.ash.org.uk/files/documents/ASH_106.pdf> (last accessed November 2013) .

5 Galligan, D. J., Law in Modern Society, Clarendon Law Series, (Oxford: Oxford University Press 2007)Google Scholar.

6 S. 1 of the Gambling Act 2005

7 The use of the term “harmful gambling” within the literature is inconsistent and varies depending on the nature of study and the screening measure used. It includes pathological, compulsive, problem and at-risk gambling.

8 DSM-V defines gambling disorder as: “A. Persistent and recurrent problematic gambling behavior as indicated by four (or more) of the following in a 12-month period: 1. Needs to gamble with increasing amounts of money in order to achieve the desired excitement; 2.Is restless or irritable when attempting to cut down or stop gambling; 3. Has repeated unsuccessful efforts to control, cut back, or stop gambling; 4. Is often preoccupied with gambling (e.g., persistent thoughts of reliving past gambling experiences, handicapping or planning the next venture, or thinking of ways to get money with which to gamble); 5. Gambles often when feeling distressed (e.g., helpless, guilty, anxious, depressed);6. After losing money gambling, often returns another day to get even (“chasing” one's losses); 7. Lies to conceal the extent of involvement with gambling;8. Has jeopardized or lost a significant relationship, job, or educational or career opportunity because of gambling;9 .Relies on others to provide money to relieve desperate financial situations caused by gambling; B. The gambling behavior is not better accounted for by a Manic Episode.”

9 The Diagnostic and Statistical Manual of Mental Disorders (DSM – V) has recently been published. Further details will are available on the Internet at <http://www.dsm5.org/Pages/Default.aspx> (last accessed on 25 November 2013) and a brief comment by Simon Planzer is available in this issue.

10 Fisher, S.E., “A prevalence study of gambling and problem gambling in British adolescents”, 7 Addiction Research (1999), pp. 509 et sqqCrossRefGoogle Scholar. Similar results can be found in other jurisdictions. See Shaffer, H.J., LaBrie, R., and Canlan, S. et al, “Pathological gambling amongst adolescents: Massachusetts gambling screen (MAGS)”; 10 Journal of Gambling Studies (1994) pp. 339 et sqqCrossRefGoogle Scholar.

11 Hume, Margee and Gillian, Sullivan Mort, “Fun, Friend, or Foe: Youth Perceptions and Definitions of Online Gambling”, 17(1) Social Marketing Quarterly (2011), pp. 109 et sqqCrossRefGoogle Scholar.

12 Morrison, Catriona and Gore, Helen, “The relationship between excessive internet use and depression: a questionnaire – based study of 1,319 young people and adults”, 43 Psychopathology (2010), pp. 121 et sqqGoogle Scholar.

13 Sussman, Steve, Lisha, Nadra and Griffiths, Mark, “Prevalence of the Addictions: a problem of the majority or the minority?” 34 Eval Health Professional (2011)Google ScholarPubMed.

14 Many negative outcomes associated with problem gambling amongst adults are visible such as losing jobs, home repossession or divorce but those do not apply to children as they are still at school, live with their parents and are unmarried.

15 Hardoon, Karen, Derevesky, Jeffrey and Gupta, Rina, “Empirical measures vs. perceived gambling severity among youth – why adolescents problem gamblers fail to seek treatment”, 28 Addictive Behaviors (2003), pp. 933 et sqqCrossRefGoogle ScholarPubMed.

16 Jamie Wiebe and Michael Lipton, “An Overview of Internet Gambling Regulations”, August 2008 submitted to the Ontario Problem Gambling Research Centre, available on the Internet at <www.gamblingresearch.org/applydownload.php?do-cid=11002>, (last accessed in November 2013).

17 Costa Rica permits any company to offer online gambling services worldwide provided they do not accept wagers from Costa Rica residents and earning money from games of chance is illegal in their jurisdictions – see <http://www.gamblingsites.com/online-gambling-jurisdictions/costa-rica>; Panama and Belize require companies to obtain licences under their Panama Online Gaming Act of 2002 and the Belize Gaming Control Act respectively. Belize government announces on their official website that there are only two companies that are in possession of Belize licence (Fulton Data Processing Limited and Sports Off-Shore Limited) and everyone else claiming to have such a licence are clandestine – see <http://www.belize.gov.bz/ct.asp?xItem=1953&ctNode=346>.

18 E.g. See Saudi Arabia for a total prohibition of any gambling under Islamic Sharia law.

19 E.g. See Russia for a partial prohibition of online gambling or US for their attempt at outlawing online interstate gambling.

20 See arguments by Abovitz, Ian, “Why the United States should rethink its legal approach to internet gambling: a comparative analysis of regulatory models that have been successfully implemented in foreign jurisdictions”, 22 Temp. Int @ I & Comp. L.J. (2008), p. 437 Google Scholar. See also Dayanim, Bentham, “Internet Gambling Under Siege”, 11(5) Gaming Law Review (2007)CrossRefGoogle Scholar.

21 E.g. Adams, P., Raeburn, J. and De Silva, K., “A question of balance: Prioritizing Public Health Responses to Harm from Gambling”, 104(5) Addiction (2009), pp. 688 et sqq.CrossRefGoogle ScholarPubMed, cited by Simon Planzer and Heather Wardle, “The Comparative Effectiveness of Regulatory Approaches and the Impact of Advertising on propensity for Problem Gambling”, (2011) report for the Responsible Gambling Fund, available on the Internet at <http://ssrn.com/abstract=2045052>, (last accessed November 2013).

22 E.g. Korn, D., “Expansion of Gambling in Canada: Implications for Health and Social Policy”, 163 (1) Canadian Medical Association Journal (2000), pp. 61 et sqq.Google ScholarPubMed, or Blaszczynski, A., Ladoucer, R. and Shaffer, H. “A Science-based framework for Responsible Gambling: The Reno Model”, 20 Journal of Gambling Studies (2004), pp. 301 et sqqCrossRefGoogle ScholarPubMed.

23 Bogart, W. A., Permit But Discourage: Regulating Excessive Consumption, (Oxford: Oxford University Press 2011)Google Scholar.

24 Such as targeted taxation or public education campaigns.

25 Messerlian, Carmen, Byrne, Andrea and Derevensky, Jeffrey, “Gambling, Youth and the Internet: Should we be concerned?”, 13(1) The Canadian Child and Adolescents Psychiatry Review (2004)Google ScholarPubMed.

26 Parliamentary report “The Gambling Act 2005: A bet worth taking” published by the Media, Culture and Sports Committee on 12 July 2012, available on the Internet at http://www.publications.parliament.uk/pa/cm201213/cmselect/smcumeds/421/42102.htm (last accessed in November 2013)

27 Forrest, David and McHale, Ian, “Gambling and Problem Gambling Among Young Adolescents in Great Britain”, 28 Journal of Gambling Studies (2012), pp. 607 et sqqCrossRefGoogle ScholarPubMed.

28 Forest and McHale, 28 Journal of Gambling Studies (2012), supra note 27, at p. 607.

29 Simon Planzer and Heather Wardle, “The Comparative Effectiveness of Regulatory Approaches and the Impact of Advertising on Propensity for Problem Gambling” (2011) report for Responsible Gambling Fund, London, available on the Internet at <http://ssrn.com/abstract=2045052>, (last accessed in November 2013).

30 Planzer and Wardle, supra note 29.

31 Monckom, Stephen and contributors, Smith and Mockom the Law of Gambling” 3rd ed, (Tottel Publishing 2009), at p. 304 Google Scholar.

32 S. 46(2)a and s46(2)b of the Gambling Act 2005.

33 S. 46(2)d of the GA 2005.

34 S. 46(2)f and s. 46(2)g of the GA 2005.

35 S. 46(2)h and s. 46(2)i of the GA 2005.

36 Monckom, Stephen and contributors, Smith and Mockom the Law of Gambling” 3rd ed, (Tottel Publishing 2009)Google Scholar.

37 Titled “Protection of children and young persons”.

38 S. 45(2) of the GA 2005.

39 S. 45(1) of the GA 2005.

40 With the removal of presumption of doli incapax by s. 34 of the Crime and Disorder Act 1998 a person is presumed to be criminally competent from the age of 10.

41 S. 62 of the GA 2005.

42 Currently level 5 which equal £5000 under s. 17 of the Criminal Justice Act 1991.

43 S. 46(2) lists several exceptions which permits soft types of gambling to be offered to minors despite them otherwise satisfying the definition of gambling within the meaning of s. 3 of the Act.

44 S. 47(1) of the GA 2005.

45 S. 47(4) of the GA 2005.

46 S. 47(5) of the GA 2005.

47 S. 47(6) and s. 182 of the GA 2005.

48 S. 47(7) of the GA 2005.

49 S. 353 (1) of the GA 2005.

50 This conclusion is further supported by the fact that the legislator specifically choose inviting, causing and permitting to gamble but only inviting and permitting to enter restricted premises.

51 S. 52 of GA 2005.

52 S. 51 of the GA 2005.

53 S. 53(a) of the GA 2005.

54 S. 53(b) of the GA 2005.

55 S. 55(1) and (2) of the GA 2005.

56 S. 54(1)a and b of the GA 2005.

57 S. 48 of the GA 2005.

58 S. 50 of the GA 2005.

59 S. 49 of the GA 2005.

60 S. 1(c) of the GA 2005.

61 Ipsos Mori Research “Underage gambling in England and Wales”, published in July 2012, available on the Internet at <http://www.natlotcomm.gov.uk/publications-and-research/research-programme/underage-play/ipsos-mori-young-people-omnibus-2012.html>, (last accessed in November 2013).

62 The same level as reported in 2012.

63 Heather Wardle, Alison Moody, Suzanne Spence et al, “British Gambling Prevalence Survey 2010” (2011) prepared for Gambling Commission and published by National Centre for Social Research, available on the Internet at <http://www.gamblingcommission.gov.uk>, (last accessed November 2013).

64 Wardle, Moody and Spence supra note 63, at p. 37.

65 By comparison with prevalence rate available for those under the age of 16.

66 Windersheid, J. F., “Victimless crimes: The Threshold questions and beyond”, 52 Notre Dame Lawyer (1977), No. 995Google Scholar.

67 Relevant person is a “person to whom payment may be made or from whom information can be obtained”.

68 S. 46(3), (4), (5) and (6) of the GA 2005.

69 S. 63 of GA 2005.

70 Harrow London Borough Council v Shah [2000] 1 W.L.R.83.

71 Harrow London Borough Council v Shah [2000] 1 W.L.R.83.

72 S. 24(9) of the GA 2005.

73 “The Licence Conditions and Code of Practice”, Gambling Commission, consolidated in December 2011, available on the Internet at <http://www.gamblingcommission.gov.uk>, (last accessed in November 2013).

74 Note added.

75 Chambers, C. and Willox, C., “Gambling on compliance with the new 2005 Act: Do organisation fulfil new regulation?”, 23 International Review of Law, Computers and Technology (2009), pp. 203 et sqqCrossRefGoogle Scholar.

76 As opposed to mere asking customers to self-affirm their age.

77 Gambling Commission (2009) “Online Mystery Shopping Programme”, Information Note, July 2009; available on the Internet at <http://www.gamblingcommission.gov.uk>, (last accessed November 2013). 2.5% of websites were identified as inconclusive and 2.2%were identified as having weaknesses.

78 Ipsos Mori Research on Underage Gambling on behalf of the National Lottery 2012 reported only 2% of minors aged 11–15 gambling online for money.

79 Press release “Mystery Shopping tests continue”, 31st July 2009. A 17 year old was able to place a bet over the counter in 98 out of 100 betting shops, available on the Internet at <www.gamblingcommission.gov.uk>, (last accessed February 2013)

80 Press release “Underage gambling in betting shops – operators face further tests”, 3rd December 2009, available on the Internet at <www.gablingcommission.gov.uk>, (last accessed February 2013).

81 Press release “Monitoring underage gambling in adult gaming centres”, 15th June 2010, available on the Internet at <www.gamblingcommission.gov.uk>, (last accessed February 2013)

82 Gambling Commission Annual Report and Accounts 2010/2011 at page 16. The Annual report and Accounts 2011/2012 do not provide any details relating specifically to test purchases in land based establishments.

83 Griffith, Mark, “Internet Gambling, Players Protection and Social Responsibility” in Williams, Robert, Wood, Robert T and Parke, Jonathan (ed.), International Handbook of Internet Gambling (London: Routledge International 2012)Google Scholar.

84 “Several online gambling sites are planning to accept Bitcoins” – see Courtneidge, Robert, Lloyds, Vicky and Lord, Locke, “Accepting Bitcoin as payment for online gambling services”, 12(2) World Online Gambling Law Report (2013)Google Scholar.

85 Jawad, C. and Griffiths, S., “Taming off the casino dragon”, 1(3) Community, Work and Family (2012), pp. 329 et sqqGoogle Scholar.

86 J. Derevensky et al, “Parental Attitudes towards gambling: results from national Canadian study”, presented at the NCPG Conference in Singapore, August 2009.

87 Felsher, J., Derevensky, J. and Gupta, R., “Parental influences and social modelling of youth lottery participation”, 13 Journal of Community & Applied Social Psychology (2003), pp. 361 et sqqCrossRefGoogle Scholar.

88 Derevensky, J. et al, “Adolescents Problem Gambling: Legislative and Policy Decision”, 8(2) Gaming Law Review (2004)CrossRefGoogle Scholar.

89 Cotte, June and Latour, Kathryn, “Blackjack in the Kitchen: Understanding Online versus Casino Gambling”, 35 Journal of Consumer Research (2009), pp. 742–758 CrossRefGoogle Scholar.

90 Note added.

91 Note added.

92 Cotte and Latour, 35 Journal of Consumer Research (2009), supra note 89, at p. 754

93 S. 149(3) of the Licensing Act 2003.

94 Ss. 22(a) and (b) states “to pursue, and whenever appropriate to have regards to the licencing objectives, and to permit gambling in so far as the Commission thinks reasonably consistent with the pursuit of the licensing objectives”.

95 Macrory Review's recommendation underpinned the Regulatory Enforcement and Sanction Act 2008

96 “Gambling Commission's Statement of principles for licensing and regulation”, September 2009 available on the Internet at <www.gamblingcommission.gov.uk>, (last accessed in November 2013).

97 S. 27 of the GA 2005.

98 S. 28(1)a of the GA 2005.

99 S. 28(1)b of the GA 2005.

100 S. 22(b) of the GA 2005.

101 S. 24 of the GA 2005.

102 Black, Julia, “Tension in the Regulatory State”, 58 Public Law (2007), at p. 2 Google Scholar

103 Data collected from the Gambling Commission's website. Available on the Internet at <www.gamblingcommission.gov.uk> and <www.gamblingkingz.com> (last accessed in November 2013).

104 With nearly 3000 licences that have been issued to operators it would be impossible for the 60 field officers to effectively enforce compliance in the face of widespread and regular breaches of the Code.

105 The Gambling Commission operates a “confidential intelligence line” where general public may report any company offering or is suspected of offering illegal gambling or which is otherwise in breach of the Licensing Code.

106 S. 72 of GA reads as follows: “In determining whether to grant an operating licence the Commission may not have regards to – (a) the area in Great Britain within which it is proposed to provide facilities, or (b) the expected demand for facilities which it is proposed to provide”.

107 There are some operators e.g. Endemol Games Ltd who require registration prior to entering the actual site or playing practice games but the number of operators with such policy is very small.

108 McMullan, John and Miller, Delthia “Wins, Winning and Winners: The Commercial Advertising of Lottery Gambling”, 25 Journal of Gambling Studies (2009), pp. 273–295 CrossRefGoogle Scholar.

109 G. Valentine and K. Hughes, “New Forms of Participation: Problem Internet Gambling and the Role of the Family”, Nov 2011, available on the Internet at <www.lssi.leeds.ac.uk/project/5> (last accessed in November 2013).

110 Bogart, W.A., Permit But Discourage: Regulating Excessive Consumption, (Oxford: Oxford University Press 2011)Google Scholar.

111 As required by Art. 46 and Art. 49 of the EC Treaty and equivalent provision with regards to other EEA States.

112 White listed jurisdictions are: Alderney, Antigua and Barbuda, Gibraltar, Isle of Wight and Tasmania.

113 Published on 3rd December 2012.

114 On the basis of regulation at the point of consumption and not at the point of provision.

115 Art. 43 and 49 EC Treaty.

116 See, e.g. Case C-124/97, Läärä, ECR [1999] I-06067; or Case C-67/98, Zenatti, ECR [1999] I-07289.

117 See, e.g. Case C-337/4, Van Binsbergen, ECR [1974] 01299.

118 “Letting Children be Children” Report of an Independent Review of the Commercialisation and Sexualisation of Childhood by Reg Bailey, available on the Internet at: <https://www.education.gov.uk/publications/…/Bailey%20Review.pdf>, (last accessed in November 2013).

119 Simon Planzer and Heather Wardle, “The Comparative Effectiveness of Regulatory Approaches and the Impact of Advertising on Propensity for Problem Gambling Report” (2011), prepared for the Responsible Gambling Fund (currently Responsible Gambling Trust), available on the Internet at <http://ssrn.com/abstract=2045052> (last accessed in November 2013).

120 Bogart, W.A., Permit But Discourage: Regulating Excessive Consumption, (Oxford: Oxford University Press 2011)Google Scholar.