The Danish Court of Frederiksberg issued its ruling on 6 February 2018 in Case No. BS FOR-1843/2017, confirming the requirement that internet service providers (‘ISPs’) must block access to illegal gambling websites directed at the Danish market. In the case brought by the Danish Gambling Authority (‘DGA’) against a number of ISPs requiring them to block 24 websites offering illegal online gambling services into Denmark, the Court confirmed the requirement that ISPs block all of the websites requested by the DGA; the ruling is the first of its kind in Denmark in that the list of websites to be blocked included six skins betting websites. Commenting on the DGA’s move to block skins betting websites, Birgitte Sand, CEO of the DGA, commented in the press release following the Court’s ruling that the DGA “made a cautious first approach in this area as we needed to test the cases in court.”
The DGA is of the belief that skins betting websites, which enable players to win virtual goods that can be exchanged for money, fall within the remit of Danish gambling legislation and given that the skins betting websites at issue in the case were unlicensed, directed towards the Danish market and in part directed towards people under the age of 18 years old, it was the DGA’s assessment that such websites were in conflict with the Danish gambling legislation.
“The DGA’s assessment has been confirmed by the Court in its decision,” explains Jesper Madsen, Senior Legal Counsel at Gorrissen Federspiel. “At the end of last year, the DGA informed the market that it was going to focus on skins betting during 2018. In light of this new decision that confirms the DGA’s interpretation of the Danish gambling legislation, we expect that the DGA will maintain this focus, and that further decisions in respect of skins betting websites will occur.”
Pursuant to the Danish Gambling Act, ISPs are not permitted to transmit information to illegal gambling websites and the DGA enforces this provision by making requests to ISPs that they block access to specific remote gambling providers who offer gambling illegally in Denmark. ISPs receiving such a request from the DGA do not normally voluntarily agree to block access to the gambling provider in question, which means that the DGA must pursue the issue through the courts. The Court has confirmed that the DGA may request blocking assistance from ISPs in relation to the offering of illegal gambling websites directed towards the Danish market and that the DGA has met the burden of proof in regard to the selection of those activities that are required to be blocked in Denmark.
Since the current Danish gambling legislation entered into force in 2012, the DGA has successfully required Danish ISPs to block a number of gambling operators’ websites. However, according to Madsen there are several key points that make this latest Court ruling interesting. Madsen explains that this Court ruling has clarified that: “A gambling provider, who does not hold a Danish gambling licence, does not violate the Danish gambling legislation merely by accepting Danish players. A violation requires that the gambling provider directs its games towards Denmark. In this recent decision, the Court establishes what elements - or at least some of them - that mean that a gambling provider will be considered to direct its games towards Denmark. Pursuant to the Court, it is in this respect sufficient that a gambling provider’s website contains one of the following elements: the use of the Danish language; the possibility to choose Denmark under personal details in connection with the registration of a player account; Danish customer support; or the possibility to choose Danish kroner as currency or to pay with the Danish debit card, Dankort.”
Danish gambling legislation also prohibits the transmission of payments relating to illegal gambling and the DGA has the ability to require payment services providers to block such payments, however it is believed that this provision has not yet been utilised by the DGA. When considering the potential for payment service providers to be required to block transactions relating to illegal gambling in Denmark, Pernille Nørkær, Partner at Moalem Weitemeyer Bendtsen, comments that “if the payment service providers are involved in any activities attached to illegal gambling, such payment services providers could be subject to similar blocking obligations.”