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Interstate Treaty on Gambling: Blocking orders against ISPs and banks? What the experts say

April 1, 2009 2009

TIME Law News 2 | 2009

A commentary by Attorney at law Dr. Wulf Hambach, Founding Partner, and Attorney at law Susanna Münstermann, Senior Associate, Hambach & Hambach Law Firm.

Berlin. – Under the patronage of the Verband der deutschen Internetwirtschaft e.V. (eco) (Association of German Internet Businesses), in cooperation with the law firm Hambach & Hambach, an experts’ conference was held on 26 March 2009, dealing with the legal and technical side of demands from politicians for blocking orders for the purpose of implementing the state gambling monopoly.

Prof. Michael Rotert, Chairman of the eco board, referred to a letter from the German Federal Government to the European Commission and said that the phrase stating that “ISPs and banks will accept this as justified on their own accord, and will support the German States in the implementation of their politics” has led to considerable irritation. He explained that the state gambling monopoly is questionable from his point of view. Private providers are excluded for reasons of addiction prevention, whilst the monopolists are permitted to advertise the high jackpot sums on state-run television networks during prime time viewing on a Saturday evening.

As announced by Prof. Rotert, the expert lecturers were able to explain why neither blocking orders against ISPs nor prohibition orders against banks issued by the gambling supervisory authorities can be used as a means to implement the Inter-State Treaty on Gambling:

• There is no statutory basis for blocking orders against ISPs. The relevant provision in the Inter-State Treaty on Gambling is not a statutory authorisation.
• From the technical point of view, blocking of internet sites is simply impossible. Legal and attractive online gambling offers provide the best level of protection.
• Blocking of online gambling offers involves considerable liability risks, as it is difficult to draw the line between illegal offers and legal online games of chance, legal games of skill and legal entertainment games, and also because the state monopoly most probably is unconstitutional and contrary to European law.
• Prohibition orders against banks based on the Inter-State Treaty on Gambling are also contrary to constitutional and European law.

Attorney at law Ms. Marberth-Kubicki (specialist in criminal law and author of the reference book “Computer- und Internetstrafrecht” [Criminal law aspects of computers and the internet]) summarised the latest studies on the topic of blocking orders against ISPs, and stated in her comparison of the legal analyses that the current political discussion regarding the blocking of websites with child-pornographic content has completely gone off the rails. Doubts and concerns are promptly answered with verbal abuse.

The topic of child pornography is meant to nip in the bud any kind of criticism, even though a particularly diligent establishment of a statutory basis should be the logical consequence. Ms. Marberth-Kubicki voiced the concern that other content may also be blocked once this instrument has become generally accepted. She therefore strongly recommends the ISPs not to conclude voluntary agreements, as these are highly problematic for the providers. The intervention by the blockings into legal positions which are protected by fundamental rights require a crystal-clear legal basis. The relevant provision of the Inter-State Treaty on Gambling is not suitable for this purpose. The latest judgment given by the BVerfG (Federal Constitutional Court) regarding the confidentiality and integrity of IT systems is also to be taken into consideration.

Mr. Schaeffer (Chief Security Analyst, TÜV Rheinland Secure iT GmbH) gave a pictorial description of the structure of the internet and came to the conclusion that the possibilities of bypassing blockings and censorship are endless, as the very idea of the establishment of the internet was for it to bypass blockings independently. Blockings will only contribute to improved concealment of the networks. Online gambling should not be prohibited, but rather regulated. Providing attractive up-to-date offers which are continuously refined, will intercept the users and prevent their migration to illegal offers.

Attorney at law Dr. Hambach (Founding Partner, Hambach & Hambach Law Firm) explained from the point of view of gambling law why there are substantial liability risks involved with the blockings. In addition to the pending infringement proceedings and preliminary proceedings against the German gambling monopoly before the European Court of Justice – which is why licensed EU providers should rather not be blocked – other questions regarding differentiation remain difficult. Therefore, horse betting, games of skills and games with low stakes must not be blocked on the internet, nor must mere entertainment games. The inconsistent German gambling law should be harmonised on the Federal level, and a gambling supervisory authority should be established which monitors the offers by private providers on the internet.

Prof. Dr. Ohler (University of Jena, Chair for Public Law, European Law, Public International Law and International Commercial Law) gave a lecture on the topic “Capping of the flow of funds – monitoring by order of the gambling supervisory authorities”, and expressed substantial doubts based on constitutional and European law.
Banks as uninvolved third parties may only be called upon to provide support in cases of the so-called “polizeilicher Notstand” (public emergency). From Prof. Dr. Ohler‘s point of view, the combat of illegal gambling cannot suffice to justify such public emergency. Also, the fact that the criteria for an automated filtering have not been defined, the lack of regulations in the Inter-State Treaty on Gambling in comparison with the act on money laundering, and concerns based on European law make it clear that the statutory regulation is inadequate.

Dr. Wulf Hambach, Founding Partner and Susanna Münstermann, Senior Associate
Hambach & Hambach

Wulf Hambach

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