UK: Digital Pirates Due a Decade

By Edward Chalk and Patrick Mitchell

In July 2015 the UK Government began a consultation on increasing the maximum custodial sentence for criminal online copyright infringement under the Copyright, Designs and Patents Act 1988 (the “Act”) from two years to ten – see our previous blog for more information. In its recent Response to this consultation, the Government addressed respondents’ concerns surrounding strict liability, the Act’s existing “affect prejudicially” wording, and the proposed level of custodial sentence.

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Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2016/04/uk-digital-pirates-due-a-decade/

Germany: Administrative court orders gambling authority to issue sports betting license

By Dr. Michael Stulz-Herrnstadt and Christoph Engelmann

Nearly four years have passed since the new State Treaty on Gambling (GlueStV) came into force allowing up to 20 sports betting licenses. The German gambling authorities reviewed the applications for sports betting licenses, decided that 35 companies meet the requirements and selected 20 companies to receive a license. But because of court challenges no license has been issued which led to criticism by the European Court of Justice (ECJ).

On Friday (15 April 2016) the administrative court of Wiesbaden (VG Wiesbaden) ordered the German gambling authorities to issue a sports betting license for one of the companies in the places 21 to 35. The court held that the limitation to only 20 licenses is contrary to EU law. Because the gambling authorities already decided that the company meets the requirements for a sports betting license they are required to issue the license without applying the limit of 20.

This is the first decision that orders German gambling authorities to issue a sports betting license under the current gambling regulation. With its decision the court “anticipates” the next move of the German gambling legislator which is rumored to be the extension of the limit of 20 to at least double the size. The legislator’s decision is expected in June.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2016/04/germany-administrative-court-orders-gambling-authority-to-issue-sports-betting-license/

EUROPE: ECJ Rules on TV Advertising Practices

By Florence Guthfreund-Roland and Mathilde Hallé

The European Court of Justice (the “ECJ”) recently ruled on the interpretation of the provisions of the Audiovisual Media Service Directive[1] (the “Directive”) relating to television advertising and commercial sponsorship in the Sanoma case[2].

At stake were the broadcasting practices implemented by Sanoma, a Finnish television broadcaster, which the Finnish Communications Regulatory Authority (the “Authority”) considered to be infringing the national legal provisions implementing the Directive. More specifically, Sanoma split the television screen into two parts at the end of its programmes: one displaying the preceding programmes’ closing credits, and the other one presenting the upcoming programme. In addition, some of its programmes were sponsored; sponsor logos were often displayed at times other than during when the sponsored programmes were being broadcast. Furthermore, Sanoma did not include “black seconds” breaks between advertising spots within the total amount of time dedicated to advertising. After receiving an order from the Authority, Sanoma filed a petition before the Finnish Administrative Court of Helsinki against the Authority’s decision. The Court confirmed the decision, and Sanoma filed an appeal before the Supreme Administrative Court of Finland, which decided to defer to the ECJ for clarification on how to interpret the Directive.

  1. The first question asked to the ECJ was whether a split screen that shows the closing credits of a television programme in one column and a list presenting the broadcaster’s upcoming programmes in another column was an appropriate means of separation between the audiovisual programme itself and the advertising. According to Article 19 par. 1 of the Directive, television advertising and teleshopping must be (i) readily recognisable, and (ii) distinguished from editorial content. The ECJ held that the Directive must be interpreted as not precluding national legislation allowing a split screen between the programme and the advertising for the upcoming programmes provided that such a means of separation meets the requirements listed above, a matter which is for the referring court to establish. It is worth noting that the ECJ did not follow the General Advocate’s opinion that there should be additional visual or audio warnings to inform the public that the second column of the screen is actually advertising.
  2. The second question asked to the ECJ was whether the Directive must be interpreted as precluding sponsorship signs shown in programmes other than the sponsored programme itself from being included in the maximum time for the broadcasting of advertising per clock hour. Pursuant to Article 10 of the Directive, viewers shall be clearly informed of the existence of a sponsorship agreement, and sponsored programmes shall be clearly identified as such with the name, logo and/or any other symbol of the sponsor, displayed at the beginning, during and/or at the end of the programmes. Such indications shall not be included in the maximum time for the broadcasting of advertising per clock hour since they are required by law. However, according to the ECJ (and in line with the Advocate General’s Opinion), when the sponsorship signs are not displayed in the sponsored programme itself but in other programmes, those signs are to be included in the maximum time for the broadcasting of advertising per clock hour.
  3. The third and last question asked to the ECJ was whether the “black seconds” in between spots should be included in the maximum time for the broadcasting of television advertising per clock hour, being 20%. Article 23 par. 1 of the Directive states that television advertising and teleshopping spots must not exceed 20% of a clock-hour time. According to the ECJ, the point of setting a maximum time for advertisement broadcasting is to insure that 80% of the whole broadcasting time be devoted to the broadcasting of programmes or other editorial content. Therefore the ECJ not only rules in favor of the inclusion of those “black seconds” in the maximum time for advertisement broadcasting but considers that national law shall not allow for the exclusion of the black seconds in the calculation of such time. Although the Advocate General based its reasoning on distinct considerations relating to the protection of the interests of viewers as consumers, its conclusion was the same as the ECJ’s: the “black seconds” should be included in the maximum time for the broadcasting of television advertising per clock hour.

For more information on the Advocate General’s Opinion, please read our post dated October 19, 2015.

For any further question please contact Florence Guthfreund-Roland (Florence.guthfreund-roland@dlapiper.com) or Mathilde Hallé (Mathilde.halle@dlapiper.com).

[1] Directive No. 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services

[2] Case C-314/14, Sanoma Media Finland Oy – Nelonen Media

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2016/04/europe-ecj-rules-on-tv-advertising-practices/

Greek Government commits to introduce fully regulated online gambling market

By Richard Woolich

At a GamblingCompliance conference held in Athens on 19 April 2016, the Government committed to introduce a fully regulated market for online gambling, in Greece, to replace the current temporary licence regime. There will be strict rules and ‘higher tax’ and a proper consultation with business. In Parliament, it was announced that the GGR rate should now be increased to 35% from the current rate of 30%. These GGR rates are the highest in Europe and will not encourage operators to comply.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2016/04/greek-government-commits-to-introduce-fully-regulated-online-gambling-market/

New Polish Gambling Act – further speculation

Following a press conference on 2 April during which the Polish Minister of Finance announced that a draft of the new Polish Gambling Act should be ready by the end of the month, the media has been discussing how it may regulate gambling in Poland. There is a suggestion that the new regulations will be based on the Danish model and that it will include a gaming tax of (depending on the source) between 10% and 20% of GGR.

It is suspected that the new regulations will extend the list of permitted online gambling activities from online betting to include online poker (including live poker) and online casinos. It is expected that there will be a moderate fee for obtaining a gambling licence and that advertising and sponsoring rules will be liberalized. As well as providing an additional source for the Polish government to finance its family support program “500+” (PLN 500 monthly for each second and next child in a given family), the new law should also encourage gambling operators to spend more on sponsoring sport in Poland.

On the other hand, it is also speculated that the new law may introduce more effective measures to prevent Polish residents from using websites of unlicenced operators, such as IP blocking or payment blocking. Totalizator Sportowy (a state-owned company) would like to have a back-tax introduced for offshore operators as is the case in Romania.

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2016/04/new-polish-gambling-act-further-speculation/

EU Parliament adopts the General Data Protection Regulation

On 14 April 2016, the EU Parliament adopted the long awaited General Data Protection Regulation (GDPR). The Regulation will have a considerable impact on all organisations based in the European Union that process personal data, but also on organisations based outside of Europe providing services to the European market.

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Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2016/04/eu-parliament-adopts-the-general-data-protection-regulation/

ASA Rules: the house always (well, usually…) wins

By Edward Chalk

On 13 April the Advertising Standards Authority (the “ASA”) upheld two complaints made against a promotion by Bonne Terre trading as Sky Vegas, in which claims of “NO LOSE” and “Risk Free” gambling were found to be misleading.

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Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2016/04/asa-rules-the-house-always-well-usually-wins/

Fair Play! New Draft Legislation Punishing Sports Betting Fraud and the Manipulation of Professional Competitions

The German Federal Government has proposed changes to the Strafgesetzbuch (German Criminal Code “GCC”) to effectively combat sports betting fraud and manipulation of professional competitions. German Minister of Justice, Heiko Maas, emphasized: “The current sanctions are insufficient. Fraud and manipulation must be combatted by the means of criminal law!

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Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2016/04/fair-play-new-draft-legislation-punishing-sports-betting-fraud-and-the-manipulation-of-professional-competitions-2/

The Netherlands: regulator cautions online gambling providers ahead of summer season

Richard van Schaik, Róbin de Wit

The Dutch Gaming Authority, Kansspelautoriteit (KSA), reminded online gambling operators last week that targeting the Dutch market is prohibited under the Betting and Gaming Act. This applies to online games of chance, as well as advertising sporting bets for events such as the European Championships.

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Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2016/04/the-netherlands-regulator-warns-online-providers-in-anticipation-of-sports-summer/

UK Budget 2016: Gambling Tax changes

By Richard Woolich

Free playsas a future tax change, from Finance Act 2017, the use of free plays will be included for remote gaming duty , but the award of a free play as a prize will not reduce the profit. Changes will be made to the definition of gaming payments and prizes. Operators will need to compare and contrast the various types of incentives, bonuses  and rewards they give their players and VIPs in good time to make any appropriate adjustment to their Ts and Cs.

Replacement of Horseracing Betting Levyas recently announced, the Levy will be replaced from April 2017 with a new funding arrangement, which will be payable by both land-based and online operators wherever they are based. The amount payable will reflect the degree of mutual interest between betting and racing, similar to the approach adopted in the French parafiscal levy. The rate has not yet been decided.

Gaming Duty Bandsas normal the gaming duty bands for casino operators have been increased in line with inflation for accounting periods commencing 1st April 2016.

Use and enjoyment VAT charge–  there is no further news on whether and how the UK will be imposing VAT on use and enjoyment of advertising services in the UK by an operator based outside the EU.

 

Permanent link to this article: http://blogs.dlapiper.com/mediaandsport/2016/03/uk-budget-2016-gambling-tax-changes/

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