Norway: Texas Hold’em allowed under the Norwegian Penal Code but still illegal pursuant to the Lottery Act

The Norwegian Appellate Court (Nw: Lagmannsretten) (the Court) recently handed down it’s decision in a case where the Oslo Regional Prosecutor’s Office had charged a person with hosting a gambling event and confiscation of NOK 10,000 which were the results of a game of Texas Hold’em No Limit. The question was whether or not it was illegal to arrange a tournament where Texas Hold’Em was played and if this particular game was a game of chance pursuant to the Norwegian Penal Code § 383 and 299.

The Norwegian Lottery Board has over many years taken the position that Poker (including Texas Hold’em) is a game of chance pursuant to the Lottery Act, and not a game of skill and therefore unlawful in Norway unless a licence to operate has been obtained. The facts of the case is that the defendant hosted the games over a period of time and in the beginning it was a game for friends and friends of friends. After a while, the circle widened, but the stakes were limited with the highest stake being NOK 9,000. The Court found that games where winning is decided by both chance and skill, is regarded as a game of chance if the outcome is primarily decided by chance. In addition the stakes must be ‘high’ because there also has to be a ‘winning purpose’ and ‘high’ stakes will promote such motivation. The Court found that both chance and skill were elements present in Texas Hold’em and that the winning purpose was not a predominant feature of the tournament as the defendant successfully argued that other elements such as prestige, being highly regarded by other players, desire to excel and improve one’s game coupled with a general interest in Poker, were also predominant motivations for the player’s participation.

In this particular case, the defendant prevailed and he was acquitted as the specific tournament he hosted was not considered illegal pursuant to the Penal Code. It was recently known that the judgement is final and will not be appealed.

The Lottery Board has somewhat modified it’s guidance as to what games are considered legal in Norway and has highlighted that freerolls with the purpose of promoting real gambling sites are still illegal, and has made a point of also highlighting that, even though Texas Hold’em is considered not to be a game of chance pursuant to the Penal Code, the game is still considered a game of chance pursuant to the Lottery Act (which requires a licence to operate).

For more information please contact Nils Arne Grønlie (nils.arne.gronlie@dlapiper.com)