Speed read
The enactment of the Gambling Regulation Bill 2022 (the Bill) now appears imminent. After a nine month effective pause in the legislative process, a number of key amendments have been made to the Bill. These amendments primarily focus on advertising restrictions (now refined to some degree) and inducements (where a proposed ban has been tempered significantly).
The Bill has been before the Oireachtas (Irish parliament) three times in the last three weeks and the Seanad (senate/upper house) Committee Stage is scheduled for Tuesday 21 May – the seventh of ten stages. While further amendments have been flagged, these are likely to be mostly technical and it is reasonable to expect that they will be dealt with quickly. This means that there is now the realistic potential of the Bill becoming law within a matter of weeks. Operators will undoubtedly require a lead-in period to get licensed and to comply with the Bill’s requirements, but further clarity is awaited on the specifics attending such ‘transitional arrangements’.
Background
It has been almost 18 months since the Bill was published on 2 December 2022. Once enacted, this long-awaited legislation will overhaul the regulation of gambling in Ireland, repealing antiquated statutes dating back to 1931 and 1956, and replacing them with a modern licensing and regulatory regime.
This will be overseen by a newly established gambling regulator, the Gambling Regulatory Authority of Ireland (GRAI) with comprehensive powers to supervise compliance with Irish gambling regulations and to take appropriate enforcement action where necessary. For a summary of the Bill’s key provisions, see our previous briefing here.
The Bill and its reforms are being driven by James Browne TD, Minister of State at the Department of Justice. While it was originally hoped that the Bill would be enacted by the end of 2023, this timeline slipped. Work was, however, underway in the background on a number of proposed amendments which were finally published on 23 April 2024. Since then, the last three weeks have seen a sustained focus on finalising the legislation. It has now passed through the first house of parliament (the Dáil) and is making its way through the second house (the Seanad). It is expected to be scheduled again for Committee Stage on Tuesday, 21 May 2024 – effectively the seventh of ten stages in the legislative process, one of the stages at which further amendments can be proposed.
Key changes adopted during Dáil Report Stage
While a number of aspects of the Bill have been subject to adverse commentary and intensive lobbying by various interest groups, there are two key areas in respect of which significant changes were made to the Bill’s original provisions during the Dáil Report Stage. These relate to (i) the restrictions on advertising gambling; and (ii) the ability of licence holders to offer ‘inducements’ to players.
Restrictions on advertising
- While the Bill continues to adopt a restrictive approach to advertising, the provisions on advertising have been significantly recast.
- Licensees will still be subject to a number of restrictions which will be contained in the Bill itself and in regulations to be introduced by the GRAI. For example, the Bill will prohibit advertising material that may attract children to gambling, as well as material that is likely to encourage excessive gambling or cause confusion among the public about the potential advantages of gambling. These rules are consistent with existing provisions relating to gambling advertising in the Advertising Standards Authority of Ireland Code. Furthermore, the legislation will also require gambling advertisements to include certain specific information, such as the risks of problem gambling and details on where to find relevant information on gambling support services.
- In terms of the GRAI’s powers to introduce further regulations relating to advertising, these will include dealing with the times, places and events at which advertisements may be shown, as well as their frequency and duration. This regulation-making power will not, however, be unfettered – the GRAI must have regard to matters such as the level of participation in different types of gambling, including excessive or compulsive gambling and relevant expert research.
- In addition to these general requirements, the amended Bill now includes specific provisions dealing with gambling advertising in different forms of media – including audiovisual on-demand media services; on-demand sound services; social media services; and video-sharing platform services. In broad terms, the revised text envisages that advertising through such media won’t be permitted unless the intended recipient of such advertising has an account with the service provider. The requirement that the recipient would have to provide explicit consent to receiving such advertising has now been limited to advertising by way of electronic communications including telephone, text message or email (which in any event is consistent with the requirements under the e-Privacy Regulations relating to unsolicited marketing communications).
- Of concern to a number of stakeholders, particularly those in the horse racing industry, is that the revised Bill retains a proposed ‘watershed’ provision, whereby gambling advertising cannot be shown between the hours of 5:30 am and 9:00 pm. This provision extends to audio-visual on demand media services, on-demand sound services and broadcasting services. There has been extensive commentary regarding the potential impact of these provisions on the horse racing sector in particular, and to address some of the concerns raised, the Bill has been amended to provide that incidental advertising, such as branding present at a sporting event, or shown as a result of event sponsorship, will not constitute a contravention of the watershed with Minister Browne commenting in the Seanad this week that “anything that can be seen at a horse race today can still be seen after the legislation passes”.
- The impact of the advertising restrictions on charities and local organisations, was also heavily debated in the most recent stages of the legislative process, with a ‘carve-out’ being included for gambling advertising which has a “charitable or philanthropic purpose”, but only where the maximum winnings for the relevant activity do not exceed €10,000.
Inducements
- The text of the Bill as originally published, had proposed a broadly worded form of ‘blanket’ prohibition on licensees from offering inducements to participate in gambling activities. That has now been adjusted with the Bill allowing for inducements in principle (with inducements being defined as “a benefit or advantage, the intent or effect of which is, either directly or indirectly, to encourage participation in gambling”) but, only where they are made available to members of the general public (rather than being targeted at a specific person or groups of persons) and subject to any regulations which may be introduced by the Minister for Justice following consultation with the GRAI. As such, the GRAI won’t have direct powers to introduce regulations on this specific issue.
- Such regulations may include conditions on the manner in which an inducement or class of inducements is offered, the type of inducements that can be offered, and could potentially go as far as prohibiting the offering of certain inducements. However, in making any such regulations the Minister must have regard to whether the relevant inducement or class of inducements at issue “encourage or contribute to (a) excessive or compulsive gambling, or (b) an increase in the level of participation in gambling in the State contrary to public policy”. In other words, there must be a clear rationale for the protection of players.
- While it is clear that inducements will be tightly regulated, the revised wording is intended to strike a better balance between preventing predatory practices, while still reflecting that gambling is a legitimate industry and inducements are necessary to allow competition between various offerings by companies.
What’s next?
- The Bill is expected to be scheduled for Committee Stage on Tuesday 21 May 2024. Some further amendments are expected with Minister Browne acknowledging in the Seanad on this week (14 May 2024) that “[t]here is more work to do be done in finalising the legislation”.
- It would however seem that the material points have been largely settled with further planned amendments aimed at “clarify[ing] the scope and application of some of the sections in the Bill; address[ing] some technical matters and corrections in the Bill; and address[ing] standard issues such as repeals and necessary consequential amendments to other legislation”. As such, it is hoped that the finish line is finally in sight with the potential for the Bill to be enacted in the weeks ahead.
- Meanwhile, it is understood that the GRAI is continuing preparations for the introduction of the new licensing and regulatory regime ahead of it being formally established and being formally conferred with its powers. The “CEO Designate” of the new gambling regulator, Anne Marie Caulfield, was appointed some time ago in September 2022. This early appointment was intended to ensure that the GRAI could become operational side by side with the commencement of the legislation. In an interview at the end of last year, Ms Caufield indicated that “preparation has been going very well” such that the GRAI is unlikely to be taking off from a standing start.
- Timing will obviously be a key question for operators and, more specifically, how long they will have to apply for licences, etc., particularly remote bookmakers and betting intermediaries licences. These existing licences aren’t due to expire until June 2025 in line with the two year licensing cycle. The Bill as currently drafted doesn’t provide much clarity on this, beyond requiring “commencement orders” to be passed for individual sections to be brought into force for specific purposes. However, the need for amendments to include “transitional arrangements in respect of existing gambling legislation” was specifically acknowledged by Minister Browne before the Seanad this week, so we can reasonably expect some clarity on that in the coming weeks.
If you require specific advice on any of the changes coming down the tracks, please contact Katie O'Connor, Partner, Joe Kelly, Partner, Denise Daly Byrne, Senior Associate, Laura Quinn, Associate, or any member of ALG's Betting, Gaming & Licensing team.
Date published: 17 May 2024
