Appleby has provided the Isle of Man chapter to the ICLG Gambling 2020. The “International Comparative Legal Guide to: Gambling” covers common issues in gambling laws and regulations – including relevant authorities and legislation, application for a licence, licence restrictions, digital media, enforcement, liability and anticipated reforms.
1. Relevant Authorities and Legislation
1.1 Which entities regulate what type of gambling and social/skill gaming activity in your jurisdiction?
1.2 Specify: (i) the law and regulation that applies to the Relevant Products in your jurisdiction; and (ii) – in broad terms – whether it permits or prohibits the offer of Relevant Products to persons located in your jurisdiction.
The principal legislation setting out the regulation of the online gambling industry is the Online Gambling Regulation Act 2001 (OGRA). All forms of online gambling and gaming are potentially licensable under OGRA, with the exception of spread betting, as set out in the Online Gambling (Prescribed Descriptions) Regulations 2007. Please note that spread betting would fall to be regulated by the Isle of Man Financial Services Authority.
Casino gaming is regulated by the Casino Act 1986 (CA 1986). The Casino Regulations 2011 provide for the operation and control of casinos in accordance with the CA 1986 and set out a list of prescribed games which may be played in the gaming room of a casino, which includes, among others, bingo and poker.
The Gaming, Betting and Lotteries Act 1988 (GBLA) and the Gaming, Betting and Lotteries (Amendment) Act 2001 regulate land based betting and bookmaking and amusements with prizes. The GBLA permits gaming, which is defined in the GBLA as “the playing of a game of chance for winnings in money or money’s worth, whether or not any person playing the game is at risk of losing any money or money’s worth”, subject to certain prohibitions set out therein.
The National Lottery Act 1999 and the GBLA regulate lotteries in the Isle of Man. The UK National Lottery is available on the Isle of Man and, apart from any small society lotteries, is the only legal land-based lottery operating on the Island.
Social gaming with no prize in money or money’s worth falls outside of the definition of gaming set out in the GBLA and OGRA (see above), and is, therefore, not currently regulated by statute. Land based skills games with no element of chance are regulated under the GBLA.
2. Application for a Licence and Licence Restrictions
2.1 What regulatory licences, permits, authorisations or other official approvals (collectively, “Licences”) are required for the lawful offer of the Relevant Products to persons located in your jurisdiction?
The licence necessary for each of the Relevant Products will depend on the type of gambling being offered and the legislation which applies.
A casino licence is required to operate a casino in the Isle of Man. The Casino (Licence Applications) Regulations 1986 set out to whom an application for a casino licence should be made and matters that should be included in such an application. The Council of Ministers, under the CA 1986, can grant up to two licences for the operation of a casino in the Isle of Man.
In order to use premises as a betting office in the Isle of Man, the premises will need to be licensed as a betting office and the person using the premises needs to be licensed as a bookmaker. It is an offence to use non-licensed premises for betting or to operate as a bookmaker without a permit under the GBLA. No licence is required under the GBLA for betting transactions which are authorised by a licence under OGRA and carried out in accordance with the provisions of the GBLA and terms of the licence (other than the negotiating or receiving of any bet from a person in the Island by means of a telecommunication).
Where an operator intends to establish in the Isle of Man and provide certain forms of online gambling, they must hold a licence under OGRA. To be eligible for an OGRA licence, operators must satisfy the following criteria:
- they must establish a Manx company;
- they must have at least two local directors, who must be individuals and not corporate entities;
- they must appoint at least one resident Designated Official, or where that Designated Official cannot reside in the Isle of Man, an Operations Manager; and
- they must either register players on Isle of Man servers or they must operate under a network services licence which obliges them to establish the network services in the Isle of Man (except in the case of software supply only licences where no play must take place on Isle of Man servers – see further below).
There are a number of different licences under OGRA, including:
1. The main OGRA licence:
- Costs GBP 35,000 per annum and runs for an initial period of five years. The initial licence application fee is GBP 5,000.
- With approval of the GSC, operators with a full licence can offer technology to sub-licensees under the reduced fee sub-licence scheme (see further below).
2. Sub-licences under OGRA:
- Can be obtained if the applicant wishes to operate exclusively with a technology provider with a full OGRA licence. Players register with the sub-licensee but may then access games provided by the Isle of Man business partner’s game server. The business partner must hold a full OGRA licence. To qualify as a sub-licensee, the operator may only use the services of one Isle of Man-licensed software/platform provider at any given time. The full OGRA licensee, however, can offer its services to as many sub-licensees as it wishes and may, in addition, register its own players.
- Operators with a full OGRA licence can offer technology to sub-licensees under the reduced-fee sub-licence scheme.
- Any new operator that wants to use the games offered by a network operator can obtain a sub-licence; the condition being that the sub-licence holder is tied exclusively to the network operator for its games.
3. Network services licence :
- Must be obtained if the operator wishes to allow one or more players registered with another non-Isle of Man licensed operator on to its Isle of Man server without re-registering the player details.
- Costs GBP 50,000 per year.
4. Software Supply licence :
- This is a new form of licence introduced under the terms of the Online Gambling (Software Supplier Licensing) Regulations 2019, which came into force on 22 February 2019. Where an operator supplies software or related services in a way that does not see player activity occurring on Isle of Man servers, they can apply for a standard OGRA licence enabling them to list software on a centrally approved register held by the GSC. The 2019 Regulations thereby introduced a new variation of online gambling licence which allows software suppliers to list their products on a register held by the GSC. Games and services noted on the register are available for immediate use by Isle of Man licensees without requiring the GSC’s permission. Software providers do not have to take out this new form of licence but its aim is to make approval of games and services more streamlined.
2.2 Where Licenses are available, please outline the structure of the relevant licensing regime.
The process of applying for a licence under OGRA, the GBLA and CA 1986 is set out at question 2.3 below.
2.3 What is the process of applying for a Licence for a Relevant Product?
In respect of an application to conduct online gambling activities, the application form, vetting forms, associated paperwork and application fee must be submitted to the inspectorate. Once the application has been accepted, the general time period for a licence to be processed is typically 10 to 12 weeks. The inspectorate may request to meet with the Designated Officials and the Operations Manager (where appointed) to discuss the business model and gain an understanding of the key officials with regard to the business being proposed. Assuming there is no delay in the application process, there will be a formal hearing approximately 12 weeks after the application has been formally accepted. Notification will be received as to whether the application was successful shortly after the formal hearing.
An application under the GBLA should be made to the GSC. A copy of the application will be sent to the Chief Constable and to the Collector of Customs and Excise in the Isle of Man. The applicant will be required to publish in a newspaper, published and circulating in the Island, a notice of the application which shall state that any person who desires to object to the grant of the permit or licence should notify the GSC. Where the licence is in respect of any premises, the applicant should also post a notice outside the entrance or on the site of the proposed entrance. The GSC will hold a meeting to consider such applications.
For an application to hold a casino licence, guidance should be sought from the GSC. There is currently only one holder of a casino licence on the Island.
2.4 Are any restrictions placed upon licensees in your jurisdiction?
The GSC has the power to issue Licence conditions that operators must comply with and these can be specific to a particular operator, depending on the circumstances. The following are the standard licence conditions for all OGRA licences:
- the operator must ensure that the games, gambling software and financial software offered are demonstrably secure, reliable and capable of being audited;
- the operator must ensure compliance with all applicable legislation, including regulations that are in force, and must seek approval for any changes made to the system;
- the GSC has no blacklists where an operator may not offer its gambling services, but the GSC requires the operator to take legal advice regarding any jurisdiction in which it takes players/does business, and to liaise with the GSC in this regard;
- the operator must protect the players’ funds paid to it by either holding those funds in a designated account as specified by the Online Gambling (Participants’ Money) Regulations 2010 (as amended) or placing those funds in a trust or other mechanism approved by the GSC;
- all players’ funds paid to the operator must be held on trust irrespective of the mechanism used to protect them, and players must be told of, and agree to, the treatment of any interest and capital that arises as a result of the funds being held by the operator. Before players’ funds may be moved from a client account to an alternative protection mechanism, the GSC must approve the mechanism;
- the operator must not operate, or be associated or linked with, online gambling sites not regulated by OGRA, except with the consent of the GSC. If the GSC approves the association or link, any reference or linked access to the associated gambling sites must be made through a web page that indicates that the player is leaving the jurisdictional control of the Isle of Man;
- the operator must allow all activities permitted by its licence, and any associated transactions, to be the subject of random audit by or on behalf of the GSC;
- the operator must, if so requested by the Isle of Man Treasury, take an active part in any forum or consultative body established by the Treasury relating to the operation and regulation of online gambling in the Isle of Man;
- operators are required to make a proportionate contribution, over the course of each year throughout the duration of the licence, to one or more organisations that conduct research into the prevention and treatment of gambling-related harm, develop harm prevention approaches and/or identify and fund treatment for those harmed by gambling;
- other than with the consent of the GSC, an operator must commence the online gambling allowed under its licence within nine months of the Licence being granted;
- operators must fully comply with any “anti-money laundering and countering the financing of terrorism” provisions that apply to the business and/or any type of gambling permitted under its licence;
- operators may not exclude residents of the Isle of Man from placing bets or stakes with Isle of Man-licensed online gambling sites, except with the agreement of the GSC;
- operators must supply sufficient information from an independent source or sources to demonstrate the probity of suppliers of any gambling or financial software they operate;
- operators must operate through trading accounts in a bank located in the Isle of Man, unless agreed otherwise with the Isle of Man Treasury. In addition, any bank accounts for trading or gambling purposes should be located in the Isle of Man unless agreed otherwise with the Treasury;
- operators must maintain accounting systems approved by the GSC and conform with such internal and external accounting practices as the GSC may require. Not later than six months after the end of every accounting year, the operator has to deliver to the GSC a copy of its accounts in the form required by the Companies Act 1982, or as defined by the United Kingdom G.A.A.P., and certified by a qualified auditor;
- operators are required to demonstrate to the GSC compliance with all Advertising Standards Authority Codes, industry self regulatory codes or such other codes as may be applicable. All operators are required to provide hyperlinks on their websites to any problem gambling organisation that may be specified by the GSC;
- if the operator enters into a business-to-business relationship with an entity that is not licensed by the GSC, the operator is required to use its best endeavours to ensure that those entities adhere to the GSC’s core principles as set out above. In addition, there is an obligation on the operator not to bring the Isle of Man into disrepute, either of its own accord or through its relationship with third parties;
- services offered by an operator and/or by any part of its group, from a jurisdiction other than the Isle of Man, shall not make reference either directly or indirectly to the GSC or a licence granted by the GSC; and
- operators must not allow a person (or persons considered by the GSC to be acting in concert) to assume or increase ownership of the operator, directly or via other holdings or arrangements, unless: (a) the ownership of the licensed company is wholly public; (b) the ownership of that person (or those persons acting in concert) afterwards is 5% or less of the operator; (c) the ownership of that person (or those persons acting in concert) has been approved by the GSC and noted in the minutes of a GSC meeting; or (d) the operator has obtained the written permission of the inspectorate for that person (or those persons acting in concert) to assume or change their ownership prior to the GSC’s approval. The licence will be suspended if any person has ownership of the licensed operator in contravention of this condition unless the GSC provides confirmation, in writing, that the operator can continue to operate.
2.5 Please give a summary of the following features of any Licences: (i) duration; (ii) vulnerability to review, suspension or revocation.
OGRA licences last for an initial period of five years but can be renewed thereafter for subsequent five-year periods . In the event that the operator fails to abide by any licence condition, the GSC can terminate the licence in accordance with the terms of section 13(4)(6) of OGRA.
In respect of a casino licence, a licence will remain in force for a period of one year from the date on which it was granted, unless it is cancelled or surrendered. The GSC may renew a licence for successive periods of one year on the application of the holder of the licence, provided that a casino licence shall not be renewed so as to be in force after the expiry of 10 years after the date on which it was originally granted. If the GSC is satisfied that the holder of the licence would not be eligible to be granted a new licence, then the GSC can refuse to renew the licence for the reasons set out at section 5 CA 1986.
Licences issued to those conducting gambling activities under the GBLA will, unless cancelled or surrendered, continue in force for the period stated in the licence. The GSC can refuse to grant or renew a bookmakers licence, or a licence in respect of any premises, for the reasons set out in Schedule 1 GBLA.
2.6 By Relevant Product, what are the key limits on providing services to customers? Please include in this answer any material promotion and advertising restrictions.
See licence conditions at question 2.4 above.
Advertising is regulated for both land-based and online gambling related activities. In addition, the remit of the Advertising Standards Agency extends to the Isle of Man.
OGRA – The Online Gambling (Advertising) Regulations 2007 (Advertising Regulations) apply to online operators.
The Advertising Regulations contain restrictions regarding the type of advertisements that an operator can produce. “Advertisement” is defined as “including every form of advertising or promotion, whether by means of the Internet, in a radio or television programme or message (whether broadcast of not), in a written or printed publication, by the display of notices, signs, labels or show cards, by means of circulars of other documents, or through any other medium”. The Advertising Regulations also state certain details that are required to be set out on the website of each operator.
GBLA – under the GBLA, no advertisement may be published:
- indicating that any particular premises are a licensed betting office;
- indicating where any such office may be found; or
- drawing attention to the availability of, or to the facilities afforded to persons resorting to, such offices.
The above restrictions do not apply where the advertisement: (i) is published in a material form; (ii) is published inside but not outside a licensed betting office; or (iii) complies with such restrictions as may be prescribed and is, in such manner as may be prescribed, published outside a licensed betting office from a place inside such an office or in premises giving access to such an office.
An advertisement is defined under the GBLA as including every form of advertising, whether in a publication, by the display of notices, by means of circulars or other documents, by an exhibition of photographs or a cinematograph film or by way of sound broadcasting, television or by means of a telecommunication system.
CA 1986 – no advertisement of a casino may be published, exhibited or distributed in the Island or elsewhere unless:
- it is not indecent or offensive;
- it is based on fact;
- it is not false, deceptive or misleading in any material particular;
- it has no sexual content;
- it is not directed at persons under 18;
- it does not contain any material in breach of copyright; and
- any claims on payouts are substantiated by the return-to-player performance of the game.
The Consumer Protection Act 1991 also contains provisions regarding misleading advertisements. A complaint can be made to the Office of Fair Trading where a consumer believes an advertisement is misleading.
2.7 What are the tax and other compulsory levies?
Under the Gambling Duty Act 2012, gambling duty is charged on the gross gaming yield of any:
- gaming (within the meaning set out in the GBLA);
- betting (except for the playing of a game of chance or skill by means of a controlled machine);
- lottery (except for those lotteries which form part of the UK National Lottery); and
- online gambling.
The rates of the duty are:
- for gross gaming yield not exceeding GBP 20,000,000 per annum, 1.5%;
- for gross gaming yield exceeding GBP 20,000,000 but not exceeding £40,000,000 per annum, 0.5%;
- for gross gaming yield exceeding GBP 40,000,000 per annum, 0.1%; and
- for gross gaming yield from pool betting, 15%.
Companies that are resident in the Isle of Man are taxed on their worldwide income at 0%, 10% or 20%.
2.8 What are the broad social responsibility requirements?
In respect of online gambling activities, there is a requirement for operators to contribute a sum to the Isle of Man Government’s Problem Gambling Fund.
In addition, a person who conducts online gambling must not allow a minor or those in a country or territory prescribed by regulations to participate. Minors include those persons under the age of 18.
There are restrictions under the GBLA on betting transactions with a minor and inciting a minor to bet. The Casino Regulations 2011 provide that no person under the age of 18 can enter a gaming room when a gambling activity is taking place.
There are also the restrictions in relation to advertising as described in question 2.6 above.
2.9 How do any AML, financial services regulations or payment restrictions restrict or impact on entities supplying gambling? Does your jurisdiction permit virtual currencies to be used for gambling and are they separately regulated?
The current substantial Isle of Man anti-money laundering laws are:
- the Anti-Terrorism and Crime Act 2003 (ATCA);
- the Terrorism and Other Crime (Financial Restrictions) Act 2014; and
- the Proceeds of Crime Act 2008 (POCA).
(Together the AML/CFT Acts.)
In addition to the above, the Gambling (Anti-Money Laundering and Countering the Financing of Terrorism) Act 2018 gives the GSC additional powers, including the power to restrict online gambling, casino licences and activities for AML/CFT reasons and, in respect of land-based gambling, permits the GSC to conduct on-site inspections. It also gives the GSC additional sanctioning powers.
Under the AML/CFT Acts, the Department of Home Affairs is responsible for making such codes as it considers appropriate for the purposes of preventing and detecting money laundering and the financing of terrorism. The Gambling (Anti-Money Laundering and Countering the Financing of Terrorism) Code 2019 came into force on 1 June 2019 (Code) and all persons licensed by the GSC must comply with the Code, with the GSC responsible for overseeing compliance.
Paragraph 4 of the Code provides that an operator must not enter into or carry on an ongoing customer relationship, or carry out an occasional transaction with or for a customer, unless the operator institutes, operates and complies with the systems procedures, record-keeping, controls and training required in order to comply with the following:
- Part 3 of the Code (risk-based approach for the business, technology risk assessments and customer risk assessments);
- Part 4 of the Code (customer due diligence (including enhanced due diligence), verification, ongoing monitoring and potentially exposed persons);
- Part 5 of the Code (record-keeping and reporting);
- Part 6 of the Code (staffing, training and monitoring compliance); and
- Part 7 of the Code (miscellaneous issues such as the prohibition on anonymous accounts, payments of online gambling winnings and transfers of business).
Failure to comply with the requirements of this Code is an offence for which this Code specifies the penalties. In addition, section 22 of the Gambling (Anti-Money Laundering and Countering the Financing of Terrorism) Act 2018 enables the GSC to impose a civil penalty in respect of a contravention of the Code.
Under certain circumstances, reports on suspicious transactions must be made to the Financial Intelligence Unit (FIU) in the Isle of Man and operators may need to make reports to the FIU to obtain a defence against money laundering when handling criminal property. The GSC does allow virtual currencies to be used for gambling. Changes in 2017 made it possible for an Isle of Man gambling operator to accept deposits in money or money’s worth in certain circumstances. This includes convertible and non-convertible virtual currencies. Convertible virtual currencies include crypto-currency (such as bitcoins) which can be bought and sold through independent exchanges for fiat currency. Non-convertible virtual currencies include virtual goods such as digital “skins” for avatars and weapons in video games and other digital objects that have functions in video games, in addition to in-game currencies that can be used to buy such objects.
3. ONLINE/MOBILE/DIGITAL/ELECTRONIC MEDIA
3.1 How does local law/regulation affect the provision of the Relevant Products in online/mobile/digital/electronic form, both from: (i) operators located inside your jurisdiction; and (ii) operators located outside your jurisdiction?
If an operator performs any of the following functions in the Isle of Man, then it will require an OGRA licence:
- registering players – for the purposes of gambling;
- striking a bet;
- offering the game; or
- providing hardware or operating systems (including the hosting of such operations) which enable online gambling to occur, unless the hosting is done by a telecom operator.
Operators that are performing the above functions outside the Isle of Man, or who do not have premises to conduct gambling on the Isle of Man, will not need to be licensed by the GSC, but specific advice should be sought depending on the circumstance.
3.2 What other restrictions have an impact on Relevant Products supplied via online/mobile/digital/electronic means?
Other domestic legislation will apply to operators, including legislation on data protection, consumer protection, anti-bribery and corruption and sanctions.
3.3 What terminal/machine-based gaming is permitted and where?
Any terminal/machine-based gaming on the Isle of Man is governed by the Gaming (Amendment) Act 1984 (GAA) and its associated regulations.
The GAA defines a “controlled machine” as any machine a player pays to play, whether mechanical, electric or electronic, which is designed or adapted for the playing of a game of chance or skill, or both.
Any premises that wish to have a controlled machine located in them are required to have a certificate. The GSC may, in accordance with the provisions of the GAA, grant a certificate; this being:
- a full certificate;
- a restricted certificate; or
- a club certificate.
Examples of premises that can hold a certificate include public houses, betting shops and casinos.
4. ENFORCEMENT AND LIABILITY
4.1 Who is liable under local law/regulation?
OGRA – the holder of a licence who fails to comply with any part of OGRA or the Operations Manager (where appointed), or Designated Official, who fails to comply with a requirement imposed by the GSC. Directors and officers of a body corporate may also be liable in certain circumstances.
GBLA – the licence holder where there is failure to comply with the GBLA, including any breach of the prohibitions contained in the GBLA or where an advertisement is in breach of the GBLA. Directors and officers of a body corporate may also be liable in certain circumstances.
CA 1986 – the sanctions under the CA 1986 can be imposed on both the director of the casino and the licence holder. The director of the casino must ensure that the Casino Regulations 2011 are complied with or he will commit an offence under the same. Any breach of the licence terms will be an offence by the licence holder. Directors and officers of a body corporate may also be liable in certain circumstances.
GAA – the occupier of the premises, or the person responsible for the management or control of the premises, shall be liable if any controlled machine is kept for use on the premises without a certificate or any person sells or supplies controlled machines without a licence. Directors and officers of a body corporate may also be liable in certain circumstances.
4.2 What form does enforcement action take in your jurisdiction?
The GSC has the power to cancel or suspend a licence under OGRA and to refuse to renew a licence under the GBLA and CA 1986, as set out in question 2.5.
There are also certain offences for which a licence holder, director or occupier of premises (as applicable) may be personally liable. The offences will depend on the legislation which applies and the type of gambling.
4.3 Do other non-national laws impact upon liability and enforcement?
The United Kingdom’s Extradition Act 1989 has been repealed in the UK but was extended to the Isle of Man, where it continues to apply.
4.4 Are gambling debts enforceable in your jurisdiction?
Yes, for online gambling debts. Section 23 of OGRA states that no contract entered into in the course of online gambling shall be void or unenforceable.
No, for other gaming or wagering. Section 40 of the GBLA states that every contract by way of gaming or wagering is void, and that no action shall lie for the recovery of any money or thing which is alleged to be won, or to have been paid upon a wager, or which has been deposited to abide the event on which a wager is made.
4.5 What appetite for and track record of enforcement does your local regulatory authority have? Have fines, licence revocations or other sanctions been enforced in your jurisdiction?
Following the MONEYVAL 5th Round Mutual Evaluation Report of the Isle of Man, which was published in January 2017, the enforcement powers of the GSC have been expanded. We are not aware of any fines or other sanctions being applied to Isle of Man operators by the GSC as yet.
5. ANTICIPATED REFORMS
5.1 What (if any) intended changes to the gambling law/regulations are being discussed currently?
There are currently no changes to gambling legislation set out in the timetable of the Manx parliament.