The Court of Appeal this week unanimously overturned the much-heralded decision by Mr. Justice Lightman in the Victor Chandler case--the decision that until Tuesday had led the betting and gaming industry to foster a belief that teletext [and web-site] advertisement of off-shore facilities was lawful in the UK. Not so. Unless overruled in the House of Lords, the three-man appeal court has delivered a blow to internet betting and gaming that has far-reaching implications.
The litigation concerned the interpretation of section 9 of the Betting and Gaming Duties Act 1981. That section makes it an offence for any person to issue, circulate or distribute in the United Kingdom "any advertisement or other document inviting or otherwise relating to the making of" bets made with a bookmaker outside the United Kingdom. The argument before the Court of Appeal was whether the process of teletext broadcast meant that an "advertisement or other document" had been "issued, circulated or distributed" in the United Kingdom. Mr Justice Lightman had ruled that "advertisements" within the section were limited to advertisements in documentary form and that the means by which the teletext broadcasts were made available for viewing did not involve the issue, circulation or distribution of any document. The Court of Appeal disagreed.
Central to all three judgements was the principle that the legislation should be interpreted so as to give it teeth in a changing world, making allowances as necessary for such advances in technology, as well as language, that had occurred since the Act came into force. Thus, whilst the original draftsman of "advertisement or other document" had never contemplated teletext screens when the legislation was first enacted in the 1950's, the statute must none the less today be interpreted so as to comprehend the usage and meaning of the word "document" in common parlance [including, for example, the description of the display on a computer screen as a "document"]. What Victor Chandler sought to do, namely advertise in the UK his Gibraltar [i.e. tax-free] betting facility, was precisely what the legislation intended to prohibit: and so the Court of Appeal had no qualms about interpreting the legislation as "always speaking" and constantly updating itself to keep abreast with technological and linguistic changes: once committed to that wide interpretative route, the Court unhesitatingly allowed for extended and modern definitions of "document" and "issue, circulate or distribute", so as to bring a teletext advertisement within the prohibition.
It has often been said that technology is racing ahead of the Law. The approach of the Court of Appeal in the Chandler case, however, does not allow statute law to fall behind. The Court's reasoning as well applies to computer-screens as it does to teletext images on the TV. What is more, the problems are not confined to betting: there are related prohibitions in the Gaming Act 1968 [though with significant differences in the wording] against advertising facilities for gaming.
The Chandler appeal sends out a serious warning to those who have already embarked, or are about to do so, upon web-page advertising in the UK of betting or gaming facilities outside the jurisdiction.
About the author
Gerald Gouriet is a Barrister who specialises in betting and gaming licensing. He was called to the Bar in 1974 and practises (along with other leading names Richard Beckett QC, James Rankin, Kevin de Haan, Andrew Muir) from the chambers of Clive Nicholls QC, at 3 Raymond Buildings, London.