German black jack player fined for playing on website of gambling operator licensed in Britain

The district court in Munich said the player had participated in unlawful gambling and was therefore in breach of the German Criminal Code. The Code prohibits participation in a public game of chance without a valid German licence.

The player, whose identity has not been revealed, was fined 70 days wages and had approximately €64,000 in profits from the game confiscated without deduction of his stakes.

Munich-based technology law expert Igor Barabash of Pinsent Masons, the law firm behind Out-Law.com, said the unnamed UK gambling operator had set out in its website terms and conditions that it was up to each player visiting its site to check whether using their gambling services was legal in their country.

Barabash said that if a gambling operator based in Germany had provided access to unlawful gambling services then it would be criminally liable under German law. However, he said the public prosecutor in Munich, who brought the case against the black jack player, could not enforce German laws against the UK gambling operator in this case.

The case against the black jack player was brought after police in Germany found a large amount of cash at the player's home. The player admitted some of the money stemmed from playing online black jack games on the website of a gambling operator licensed in Great Britain but claimed he did not know that participation in such games is a criminal offence under German law.

However, the Munich district court found that player had accepted that participation might be a criminal offence by agreeing to the terms and conditions on the gambling operator's website.

The court said that although the gambling operator does have a valid licence in Great Britain, such a licence was not sufficient for enabling black jack to be played in Germany.

Barabash said it is the first time a court in Germany has dealt with such an issue.

"Unfortunately, the court did not fully evaluate whether the unlawful gambling rules under the German Criminal Code comply with EU law," Barabash said. "There is a clear anomaly between, for example, rules that allow a German person to visit a casino outside of Germany and those that prohibit the same casino games being played online within Germany."

The decision of the Munich district court has been appealed by the black jack player. Barabash said that it would be interesting to see whether more experienced judges at the appeal court decide to overturn the verdict.

Barabash said, “What we see from this case is that German authorities do prosecute such violations. Therefore, it might cause a lot of German online players to assess whether it is worth playing games of chance on the internet if there is a chance they could be prosecuted."

Gambling licensing expert Audrey Ferrie of Pinsent Masons, the law firm behind Out-Law.com, said it would be "extremely unlikely" that a similar case would be brought in the UK.

"I think it is extremely unlikely that prosecutors in the UK or the Gambling Commission would use their limited resources to prosecute an individual for using a website which did not have a Great Britain licence, unless there was some other issue involved," Ferrie said. "

Ferrie said that an online poker player was prosecuted earlier this month and ordered to repay £1 million after being found to have played the card game fraudulently on the internet. The Gambling Commission said the case, believed to be the first of its kind in the UK, "sends out a clear message that if you play poker fraudulently online you could end up both in prison and having to repay your ill-gotten gains".

Ferrie said: "The Gambling Commission publishes a licensing, compliance and enforcement policy statement and statement of principles for licensing and regulation.  It is clear from these that their efforts are very much targeted at those who provide facilities rather than the likely users."