Out-Law News | 21 Jan 2014 | 5:14 pm | 3 min. read
ISPs rejected calls by the regulator to post warning notices on customers' screens when they access unlicensed betting websites, according to a report by the Financial Times. The 'splash pages' would notify internet users that the sites they have visited were operating illegally, the report said.
The Gambling Commission said it had held talks with ISPs to look into how the providers could help it protect consumers against using unlicensed betting sites.
"With the legislative changes in the pipeline (the Gambling (Licensing and Advertising) Bill), it can be no surprise that we have been holding exploratory talks with ISPs and others to determine the most effective ways of protecting and informing the public in Britain," the Gambling Commission said in a statement.
"We have been exploring the ISPs’ approach when faced with clear evidence that sites are unlicensed and engaged in illegal activities. At this stage we are just exploring back up options as we do not expect illegal sites to be a major issue given the attractiveness and width of the legal offer," it added.
Under the Gambling (Licensing and Advertising) Bill, gambling operators would be required to obtain a remote gambling license from the Gambling Commission if they wished to provide remote gambling services to consumers in Great Britain. The new law, if introduced, would bring many foreign-based operators within the scope of direct regulation by the Commission by altering the licensing regime to one based on where bets and wagers are placed – the 'point of consumption' (POC) – rather than where the operator is based – 'the point of supply'.
Currently, foreign-based operators do not need a licence from the Commission to provide remote gambling services in Britain so long as they have no key equipment here. As long as those businesses are regulated within the European Economic Area, which for these purposes includes Gibraltar, or in certain 'white-listed' jurisdictions approved by the Commission they can legitimately provide British consumers with access to online gambling sites they run.
BT and TalkTalk said that they were opposed to filtering customers' access to online content without there being a legal basis to do so.
"BT has not been asked to block any sites by the Gaming Commission," a spokesperson for the company said. "However, as with other cases, such as Newzbin, blocking requests would need to be made in conjunction with a court order."
A TalkTalk spokesperson added: "We do not believe that it is for ISPs to decide what content customers should access. It is really important that there is either a proper legal framework when it comes to blocking access to sites, just like with copyright infringement, or that it is down to customer choice like our HomeSafe system offers, where customers can choose to filter access to content on their own broadband connection."
Gambling law expert Susan Biddle of Pinsent Masons, the law firm behind Out-Law.com, said that plans to include new ISP blocking rules within the Gambling (Licensing and Advertising) Bill had been resisted by the Government during recent scrutiny of the Bill by a committee in the House of Lords.
Lord Gardiner said that "the evidence of the effectiveness and proportionality in respect of ... ISP blocking ... is mixed," according to a transcript of the committee session. He stressed the need to consider the impact on ISPs, and concluded that the Government did not currently consider blocking tools to be appropriate.
"Splash pages may be being regarded as in some way a softer option on a spectrum that finishes with blocking unlicensed websites," Biddle said.
In the summer of 2011 six major film studios won a High Court order against BT forcing the ISP to block its customers from visiting a copyright infringing website called Newzbin 2. BT was ordered to deploy technology it had developed to stop customers accessing websites containing child abuse images. It was the first time an ISP has been ordered to block access to such a site under UK copyright laws.
Section 97A of the Copyright, Designs and Patents Act gives UK courts the power to grant an injunction against an ISP if it had 'actual knowledge' that someone had used its service to infringe copyright.
BT had resisted calls from the rights holders to block access to Newzbin 2 until there was a ruling that confirmed the illegality of the site and which ordered it to take action.
Since the Newzbin 2 ruling there have been a number of other High Court orders issued to BT and other ISPs to block customers' access to other copyright infringing sites.