Gaming in Ireland: overview

Gambling in various forms has been regulated in Ireland for centuries. Historically, Ireland had a significant horseracing industry and there is a rich cultural history of associated on-course and off-course betting. Bookmakers, bookmakers’ premises and wagering have been regulated since the 18th century by various statutes and common law (where, prior to 2007, the courts determined as a matter of public policy, that wagering contracts were unenforceable).

Ireland has not traditionally had a casino industry, although, this changed to a certain degree in the early 2000’s, with the emergence of ”private members clubs” offering limited gaming facilities.

Ireland has had sweepstakes since the early part of the 20th century (notably the Irish Hospitals Sweepstake). There is also a state regulated prize bonds system and a state regulated national lottery, which was launched in 1987. A 20-year national lottery licence was awarded in 2014.

Gambling in Ireland is regulated by both:

• Legislation relating to betting.
• Legislation relating to gaming and lotteries.

Betting

Betting is governed primarily by the Betting Act 1931, as amended (1931 Act). The 1931 Act, which repealed the Betting Act 1926, was introduced to regulate the bookmaking industry and relax certain prohibitions on betting that were contained in the Betting Act 1853.

The most significant recent change to the 1931 Act came in the form of the Betting (Amendment) Act 2015, which regulated remote (that is, online) bookmakers and betting intermediaries for the first time. All online bookmakers or betting intermediaries who accept bets from customers based in Ireland are subject to the licensing regime under the Betting (Amendment) Act 2015.

The Tote (pari mutuel) is governed primarily by the Totalisator Act 1929 and the Irish Tote has been operated effectively as a state monopoly since then.

Gaming and lotteries

Gaming and lotteries (aside from the National Lottery) are governed primarily by the Gaming and Lotteries Acts 1956 to 2013 (1956 Act). Under the 1956 Act, gaming in general is prohibited, unless it falls under either of the following exemptions:

The 1956 Act was introduced to repeal and replace a series of individual 19th century gaming and lotteries acts and repealed older legislation, including the Act for Suppressing of Lotteries (1698) (10. Will. III, c.23). Although it was innovative in so far as it regulated both areas in a short, single piece of legislation, it is now generally considered as archaic and unhelpful.

The 1956 Act is technically (and in some respects practically) applicable to online gaming, but it was obviously not drafted with online gaming in mind. Legislative changes are expected to fully regulate and tax online gambling in all forms (see Question 17).

Lotteries (aside from the National Lottery) are permitted to a narrow extent under the 1956 Act. For example, lotteries must have small prize limits, be subject to the acquisition of a lottery licence and be carried out with the predominant aim of raising money for good causes. There is also a private lotteries exemption, which applies in very limited circumstances (such as where the sale of lottery tickets is confined to people who work or reside in the same premises).

The largest and most lucrative lottery is the Irish National Lottery, which has been historically operated by a subsidiary of the Irish Post Office (An Post). In 2013, the Irish Government held a competitive tender process to award a new 20-year licence to operate the National Lottery. The winner of this process, Premier Lotteries Limited, was a consortium involving An Post and led by the UK national lottery operator, Camelot. The licence was agreed and signed in February 2014. Subsequently, the Government enacted the National Lottery Act 2013 (2013 Act), which repealed and replaced the terms of the National Lottery Act 1986. The most notable feature of the 2013 Act is the establishment of a new office, the Regulator of the National Lottery, to ensure that the National Lottery is run with all due propriety so that participants’ interests are protected and the long-term sustainability of the National Lottery is safeguarded.

General definition

Irish law distinguishes between betting and gaming and lotteries.

Section 1 of the Betting Act 1931, as amended (1931 Act) simply provides that the word ”bet” includes wager, and that cognate words must be construed accordingly. The scope of this definition has been determined at common law by the courts, although case law is relatively rare.

A more relevant definition is that of a ”bookmaker”, which is defined as a person who, in the course of business, takes bets, sets odds and undertakes to pay out on winning bets (section 1, 1931 Act).

”Gaming” is defined as playing a game (whether of skill, chance or partly of skill and partly of chance) for stakes hazarded by the players (section 2, Gaming and Lotteries Acts 1956 to 2013 (1956 Act))

In addition, a ”stake” is defined as any payment for the right to take part in a game or any other form of payment required to be made as a condition of taking part in the game, but does not include payment made solely for facilities provided for the playing of the game (section 2, 1956 Act).

The 1956 Act defines ”lottery” as including all competitions for money or money’s worth, involving guesses or estimates of future events or of past events, the results of which are not yet ascertained or not yet generally known.

A more detailed statutory definition of a lottery does not exist, but it has been accepted by the Irish Supreme Court (Flynn v Denieffe [1993] 2 IR) that a lottery consists of an arrangement for the distribution of prizes by chance where there is no element of skill on the part of the person participating and where there is some payment or consideration by or on behalf of the participant.

Online gambling

Irish gaming law does not currently address online gaming directly (see Question 17).

The 1931 Act was recently amended to address online betting and the provision of online betting intermediary services. The definition in the statute focuses on the provision of betting/intermediary services by “remote” means, which is defined as any electronic means, including the internet, telephone and telegraph (whether wireless or not).

See Question 7, for information on who constitutes a remote bookmaker or a remote betting intermediary and the licence application process.

Land-based gambling

Irish gaming law does not currently address land-based gambling.

The following regulatory or governmental bodies are responsible for supervising gambling in Ireland:

Poker

Poker is not governed by any specific piece of law, but rather falls under the remit of the Gaming and Lotteries Acts 1956 to 2013 (1956 Act), as a game (partly of skill and partly of chance), which is played for stakes hazarded by players.

Unlike in other common law jurisdictions, where there has been some debate as to whether poker is a game of skill or chance and therefore whether it could fall outside of legislation regulating games of chance, the law in Ireland makes no distinction between games of skill and chance or a combination of both. Therefore, it is not treated any differently from other types of gaming.

It is possible to operate poker games as ”lawful gaming” under the 1956 Act in certain circumstances, for example, if the games are carefully structured to comply with the provisions of the 1956 Act (normally, these are promotional tournaments that are not designed to make a profit for the organiser).

Betting

The terms of the Betting Act 1931, as amended (1931 Act) apply to betting that takes place in relation to any event of uncertain outcome. The 1931 Act does not define the act of ”betting”, except to say that it includes activities such as wagering.

A fundamental element of bookmaking involves the assumption of some level of risk by the bookmaker in relation to the outcome of an event (whether or not the bookmaker can manage his/her exposure to risk through laying some or all of the stakes received).

Following the decision in the High Court case of Mulvaney & Ors v The Sporting Exchange Ltd trading as Betfair [2009] IEHC 133 on 18 March 2009, section 1 of the 1931 Act was amended to define a bookmaker as a person who, in the course of business, takes bets, sets odds and undertakes to pay out on winning bets.

All of the above elements must be met for a person to be considered to be acting as a bookmaker.

The concept of a ”remote betting intermediary” was introduced by section 49 of the Finance Act 2011 to capture betting exchanges for tax purposes for the first time. A remote betting intermediary was defined when the 1931 Act was amended in 2015 as a person who, in the course of business, provides facilities that enable persons to make bets with other persons (other than the first-mentioned person) by remote means.

Although the tax treatment of remote betting intermediaries suggests that the definition is primarily aimed at betting exchanges, the definition is somewhat broad and could potentially apply to a wide variety of operators within the Irish licensing regime.

Sports betting

Sports betting is treated in the same way as non-sports betting (see above, Betting).

Casino games

Casino style games (such as blackjack or roulette) are not specifically identified by legislation but fall under the broad definition of gaming under the 1956 Act and are therefore generally prohibited.

Anti-money laundering procedures in Ireland are governed by the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (as amended) (Criminal Justice Act). Section 25(1) of the Criminal Justice Act, classifies, among others, the following categories of persons acting in the state as ”designated persons”:

This reflects the somewhat unusual position in Irish law whereby casinos (which are not technically permitted by the terms of the 1956 Act) are regulated for anti-money laundering purposes.

At the time of writing, Ireland has yet to transpose the Fourth Anti Money Laundering Directive. It is likely that when this is transposed, it will impact on some forms of gambling in Ireland.

Slot and other machine gaming

The prohibition on slot machines originally contained under section 10 of the 1956 Act was repealed in 1970. Section 43 of the Finance Act 1975 (as amended) provides that a person who makes a gaming machine available for play must have a gaming machine licence for each machine.

Terminal-based gaming

Terminal-based gaming (such as FOBTs) is not common in Ireland (at least among the mainstream operators) and is likely to be illegal under the terms of the 1956 Act, but this position has not been tested. On the rare occasions when they are discussed in parliamentary debates, there has been a general reluctance to legalise FOBTs.

Bingo

Bingo is generally considered to be a lottery under Irish law (Barrett v Flynn [1916] 2 I.R. 1) (see Question 1, Gaming and lotteries).

Lottery

Lotteries (aside from the National Lottery) are addressed directly by the 1956 Act. The National Lottery is governed by the terms of the National Lottery Act 2013 (see Question 1, Gaming and lotteries).

Tote betting

Pari mutuel betting is governed by the Totalisator Act 1929 (as amended). Under that law, a totalisator is defined as an apparatus or organisation by means of which an unlimited number of persons can each stake money, in respect of a future event, on the terms that the amount to be won by those who are successful is dependent on or is to be calculated with reference to the total amount staked, by means of the apparatus or organisation in relation to that event (but not necessarily on the same contingency). It is prohibited to operate a totalisator without a licence.

Ireland has historically issued only two totalisator licences, one to Horse Racing Ireland and one to Bord na gCon (the Irish Greyhound Board).

Prize bonds

The government-backed prize bond scheme was established by the Finance (Miscellaneous Provisions) Act 1956 and operates outside the scope of the 1956 Act.

Spread betting

Spread betting on financial instruments is governed by Directive 2004/39/EC on markets in financial instruments and regulated by the Central Bank of Ireland.

The regulatory and tax treatment of spread betting on sports or other events is less clear pending the reform of the gambling laws.

Available licences

Casinos. Ireland currently has no law specifically governing casinos. Mainstream commercial casino games generally constitute unlawful gaming and are generally prohibited if they promote or provide facilities for any kind of gaming that is deemed ”unlawful gaming”, such as either (section 4(1), Gaming and Lotteries Acts 1956 to 2013 (1956 Act)):

Although it is not possible to obtain a gaming licence for casino activity in Ireland, casinos do operate in Ireland under the auspices of ”private members” clubs. The legal status of these operations is not entirely clear as the private members clubs exemption only applies to private lotteries and there is no ”private gaming exemption” under the 1956 Act.

The Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (as amended) classifies casinos and private members clubs as ”designated persons” for anti-money laundering purposes.

Bookmakers. Persons wishing to operate a bookmaking business (that is, a retail shop) must (Betting Act 1931, as amended (1931 Act)):

Eligibility

A certificate of personal fitness may be refused if a superintendent of An Garda Síochána considers that the applicant is unfit due to either:

• His/her financial circumstances.
• The applicant satisfying one of the following considerations (section 6, 1931 Act):
  • prior offences relating to betting, gaming, tax or money laundering;
  • the prior holding of a betting licence, which was revoked; or
  • situations where the prior holder of a betting licence unreasonably refused to pay out on valid bets.

The applicant must also be registered for betting duty.

Application procedure

An applicant must make an initial application for a certificate of personal fitness to the superintendent of An Garda Síochána (provided that the applicant is based in Ireland). This also involves placing adverts in national newspapers, which serve to notify the general public of an applicant’s intention to apply for a certificate of personal fitness.

On receipt of the certificate, the applicant must make an application (with a tax clearance certificate and licence fee) for a bookmaker’s licence to the Irish tax authority, the Revenue Commissioners.

An individual who is not resident in Ireland can apply for a certificate of personal fitness directly to the Department of Justice and Equality.

If the process goes smoothly, it should take no more than a number of weeks.

Duration of licence and cost

A standard bookmaker’s licence lasts for two years. The licence fee is EUR500 for a bookmaker’s licence and EUR760 for a certificate of registration of premises.

Prohibitions

See Question 1, Gaming and lotteries.

Mainstream commercial casino games will normally constitute unlawful gaming and are generally prohibited under the Gaming and Lotteries Acts 1956 to 2013 (1956 Act). Certain ”private members clubs” do offer gambling products (see Question 5, Available licences).

Restrictions

Not applicable.

Anti-money laundering legislation

Although casinos are generally prohibited, there are a small number of ”private members clubs”, which do offer gambling products and are subject to anti-money laundering legislation (see Question 4, Casino games).

Prohibitions

Gaming. See Question 1, Gaming and lotteries.

Betting. The Irish online betting regime was introduced to tax operators who are targeting Irish customers. The focus of the laws and regulations in this area is therefore on the taxation of these entities rather than a detailed treatment of what they can and cannot do.

Restrictions

See above, Prohibitions.

Anti-money laundering legislation

All operators in the Irish market must comply with the obligations of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (as amended).

Irish law does not recognise a distinction between the law applicable to B2B operations and B2C operations. In practical terms, white-labelling and other devices are used to ensure that online gambling activities are located and structured in a manner that does not breach Irish law. Specialist local legal and tax advice is required.

The current wording of the General Scheme of the Gambling Control Bill 2013 proposes that entities supplying certain equipment or services to the providers of licensed gambling services in Ireland must in the future register with the Office for Gambling Control, Ireland. However, this legislation has not yet been passed so its terms are not yet binding (see Question 17).

A party (including, for example an ISP) is prohibited from enabling unlicensed remote bookmakers or betting intermediaries from accessing or using a particular internet address or domain (section 32A, Betting Act 1931, as amended). The provision of services or facilities that would enable persons in Ireland to access unlicensed remote bookmakers or remote betting intermediaries is also prohibited.

There is also a general prohibition on the advertising of these unlicensed services.

The Revenue Commissioners can seek enforcement of the above rules in the district courts.

Financial transaction and ISP blocking are also provided for in the General Scheme of the Gambling Control Bill 2013 (see Question 17), however the scope and precise detail of the measures are yet to be finalised.

Not applicable.

Social gaming is not specifically regulated in Irish legislation. Therefore, social gaming must be analysed with regards to the provisions of the Gaming and Lotteries Acts 1956 to 2013 (1956 Act), which regulate gaming generally.

See Question 2, General definition for a definition of gaming under the 1956 Act. If social games are free to enter, they will not require a stake (that is, any payment for the right to take part in a game, but not including a payment made solely for facilities provided for the playing of the game). Therefore, they would not be prohibited under Irish law.

If a social gaming promoter offers a game that requires an entry fee rather than a stake, this would be permissible, but only if all of the following are satisfied:

The provision of prizes has no bearing on a game’s legality.

There are no current plans to address social gaming specifically in the heads of the Gambling Control Bill (see Question 17). However, as the Bill is at a very early stage, amendments to regulate social gaming may be introduced.

Gambling debts are unenforceable in Ireland. This position was recently reinforced in the reported High Court case, Sporting Index Limited v John O’Shea [2015] IEHC 407. This case reiterated the position under the Gaming and Lotteries Acts 1956 to 2013 (1956 Act), which states that every contract by way of gaming or wagering is void and therefore that there can be no action for recovery of any disputed sum (section 36(2), 1956 Act).

Therefore, an operator cannot take action to enforce a gambling bet and a punter cannot sue an operator who refuses to pay out on a debt. However, betting operators who refuse to pay out may have difficulty obtaining (or maintaining) their certificates of personal fitness. One of the criteria which is taken into account in the awarding (or renewal) of a certificate of personal fitness is the unreasonable refusal to pay out on otherwise valid bets.

Land-based gambling

Betting is taxed by way of an excise duty. Bets entered into by a bookmaker are currently taxed at 1%. On-course/tote bets are not taxed. Bookmakers must also be registered for betting tax before they begin to offer services to the public (see Question 5, Eligibility).

Online gambling

The holder of a remote bookmaker’s licence must pay a betting duty of 1% of the stake wagered.

Remote betting intermediaries must pay a betting intermediary duty of 15% on their commission charges.

The General Scheme of the Gaming Control Bill 2013 was silent on taxation and it is expected that considerable further debate on this issue will occur in the event that this Bill is progressed before the Irish Parliament (Oireachtas).

Land-based gambling

Betting. The Betting Act 1931, as amended places the following restrictions on a bookmaker’s ability to market to the public (in particular in relation to on-premises advertising):

The level of compliance with these provisions is relatively low.

The Broadcasting Commission of Ireland (BCI) is an independent statutory organisation responsible for a number of key areas of activity relating to television and radio services in Ireland. The BCI’s General Commercial Communications Code (Code) addresses standards with regard to all forms of commercial communications, advertising, sponsorship and teleshopping, some of which are relevant to the betting industry.

Section 8.8 of the Code provides that:

The Advertising Standards Authority for Ireland (ASAI) is an industry body that publishes and monitors compliance with advertising standards. In the latest version of their Code of Standards for Advertising and Marketing Communications in Ireland (which came into effect on 1 March 2016) they have (for the first time) included a chapter on guidelines for advertising in the gambling industry.

Lotteries. The Gaming and Lotteries Acts 1956 to 2013 (1956 Act) prohibits the promotion of unlicensed lotteries.

Gaming. Section 4(1) of the 1956 Act prohibits the promotion (or assistance in promotion) of any kind of gaming in which either:

As an EU member state, Ireland is also subject to the evolving case law emanating from the Court of Justice of the European Union in respect of the free movement of services, freedom of establishment and so on. While gambling services are generally exempted from normal free movement provisions in the Treaty on the European Union , the case law in this area continues to evolve.

There is no distinction made between sponsorship and affiliate marketing for the purpose of advertising regulations in Ireland and the principles above also apply to sponsorship arrangements.

Future reform. Under the General Scheme of the Gaming Control Bill 2013, only licensed operators would be permitted to advertise gambling services available to Irish players and various restrictions would apply to how advertising, promotion or sponsorship could take place (with further rules to be issued by the Office of Gambling Control, Ireland in the future, if and when that office is established).

Online gambling

Advertising of online gambling is regulated in the same manner as advertising of land-based gambling (see above, Land-based gambling).