The Australian Communications and Media Authority (ACMA), on 11 November 2019, issued a statement confirming that it will be implementing measures, through Australian internet service providers (ISPs), to block illegal offshore gambling websites from being offered to persons located in Australia1.
The introduction of this measure is the result of the Australian Federal Government’s review of measures it can introduce to combat gambling by Australians on illegal offshore websites. Refer to our focus paper, Australian Government Proposes Scheme to Block Illegal Offshore Wagering Websites2, for background information.
Contrary to what had been originally contemplated, it is now intended that all offshore online gambling websites may be blocked and not solely offshore online wagering websites.
How the Website Blocking Will be Implemented:
The blocking of offshore illegal gambling websites will be implemented by means of the powers under the Telecommunications Act 1997 (Cth) (the TeleCom Act). The ACMA may make, by notice to the ISPs, a disruption request to block a nominated offshore illegal gambling website, and the ISPs, in accordance with the provisions of section 313(3) of the TeleCom Act, are required to give the ACMA such help as is reasonably necessary to, among others:
- enforce the criminal law and laws imposing pecuniary penalties;
- protect public revenue; and
- safeguard national security.
Section 314 of the TeleCom Act provides further that a person who is requested to give help must comply with the requirements of the request on the basis that the person:
- does not profit from nor bears the costs of giving the help; and
- complies with the terms and conditions as are agreed between the person and the Commonwealth.
The ACMA has issued a document entitled “Policies and procedures for the lawful disruption of access to online services”3, which contains Guidelines that outline the process and considerations which the ACMA will adopt when evaluating if a disruption request will be issued.
The Guidelines specify thresholds that must be met in order for a disruption request to be made. The relevant circumstances must:
- involve a serious criminal or civil offence, or a threat to national security; and
- carry a maximum prison term of at least two years, or if the offence does not carry a prison term, a financial penalty of at least 120 Commonwealth penalty units.
By offering illegal offshore gambling services to persons located in Australia, there will be a contravention of the Interactive Gambling Act 2001 (Cth) in a manner which falls within the latter category.
As Australia is committed to promoting an open, free and secure internet, the ACMA will also take into account certain other factors when considering whether to issue a disruption request, including:
- the availability of other enforcement tools;
- the services available on the site;
- the likely effectiveness of the proposed disruption;
- the views of the ISPs;
- technical feasibility and costs involved in the proposed disruption;
- potential consequences and/or damage to the government;
- the nature of the offence or contravention;
- whether there is a public or national interest in the proposed disruption; and
- any other factor considered relevant by the ACMA.
The Guidelines state that the decision to block a website is not one that the ACMA will take lightly. Further to the considerations already mentioned, the ACMA will also have regard to:
- technical expertise to ensure that the disruption is:
- responsible;
- effective;
- as targeted as possible; and
- able to be executed appropriately;
- consultation with ISPs;
- agreed terms and conditions with ISPs.
Once the decision is made for a disruption request to be issued, the ACMA will provide ISPs with a stop page which will be seen by persons who access the affected website and which will contain:
- confirmation that the ACMA has requested the disruption;
- the ACMA’s contact details;
- a high-level reason for the disruption request; and
- information about the ACMA’s complaint and review mechanisms.
The stop page, therefore, provides Australians who access the relevant offshore gambling website with information to confirm that the ACMA has requested the relevant website to be blocked and the general reason why the website is blocked. Contact details will also be provided which enables the person who is affected by the disruption to lodge a complaint with the ACMA for a review of the disruption to be conducted (where necessary).
An expiration date for the disruption will be determined once it is implemented. Furthermore, the ACMA will monitor the effectiveness of the disruption and any feedback it receives regarding the disruption.
Considerations:
From the ACMA’s Guidelines, it would appear that a decision to block a website is a measure of last resort which the ACMA will adopt solely once it considers that other enforcement measures are not effective.
How the website blocking measure will be implemented in practice is not yet clear. However, the ACMA views the implementation of website blocking by ISPs as an effective tool to further combat the offering of illegal offshore gambling websites to Australians.
We assume that these steps will only be taken due to the other enforcement measures against offshore gambling sites only being effective to a certain extent. We understand that, although many offshore gambling websites have received warning notices sent by the ACMA to cease providing online gambling services to Australians and have ceased to provide those services, a number have not. It is these parties against whom we anticipate this measure will be exercised.
The ACMA has already announced that it was taking the necessary steps to implement this measure in respect of two online casino websites4.
One other point to note is that it is only consumers that will be aware directly of ISP blocking measures having been put in place. It does not appear that the affected offshore gambling sites will be given notice, nor is it clear what steps are available to be taken to contest the implementation of ISP blocking measures.
For further information on this measure, please contact any member of the Addisons Gambling Team.
1.The ACMA notification may be accessed at: https://www.acma.gov.au/articles/2019-11/acma-begin-blocking-illegal-offshore-gambling-websites
2. Our Focus Paper may be accessed here.
3. This ACMA document may be accessed at: https://www.acma.gov.au/publications/2019-11/publication/acma-s313-policies-and-procedures
4. The ACMA’s notification may be referred to at: https://www.acma.gov.au/articles/2019-11/acma-moves-block-emu-casino-and-fair-go-casino
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