Remark: This article provides general information on gambling. It in no way replaces legal advice from a lawyer.
For further information, please contact:
Me Pascal Reynaud
Attorney at law, member of the Strasbourg bar Association (France)
Online Gambling : what is the French legal framework ?
Many games on the internet offer the possibility of spending money, the player hoping in return to earn a prize or a sum of money.
The question is simple: Are those games legal under French law?
We will consider the current legal framework of these games (part 1) and the most frequently used bypasses and exceptions to their prohibition (2nd part).
1. The principle behind the prohibition of gambling under French law
The main legal provisions regarding gambling are found in the Code de la sécurité intérieure (domestic security code) section 320-1 and following (Hereafter CSI) and in the Law No. 2010-476 of 12 May 2010 on opening online gambling.
The CSI is based on the principle that games of chance, betting, lotteries, gambling and casinos are prohibited unless the operator can benefit from an exception to the law, or has obtained an authorization and approval by the French administration.
1.1 Reminder of the legal framework for gambling
Before starting a gambling game on the internet, it is necessary to determine whether it falls into a category prohibited by law. .
For example, betting is prohibited in France. There is no legal bookmaker except:
o PMU for horse betting (on & offline)
Similarly, organizing poker games for real money is forbidden in France, except:
o in offline casinos and in the gaming clubs in Paris.
o for online gambling operators licensed by the ANJ,
The French law put a general prohibition on gambling for minors, except when it falls under the very specific provisions relating to charity lotteries and funfair games and sweeptsakes.
Proposing a forbidden game to the public is a criminal offense. Violation of this prohibition is punishable by imprisonment for up to three years and a fine of up to 90,000 euros, as well as many additional penalties including penalties for legal persons (art. L324-1 CSI ).
In principle, except if the player participates in any way in the organization of an illegal game, he cannot be criminally convicted.
Very often, tax penalties are added to Criminal penalties. Recently, the French Supreme Court confirmed this double sentence (Cass. Crim., June 5, 2013 No. 12-83288), for a defendant guilty of both criminal and fiscal offenses.
What are the main legal bases of those bans ?
1.1.1. The prohibition of games of chance
It is mainly based on these provisions that legal action may be taken against a game which offers a prize or a sum of money, following an outlay on the part of the player.
Legally, the definition of a prohibited game of chance (jeu d'argent et de hasard) is very wide. According to Article L 320-1 CSI is deemed to be a prohibited game :
"All operations offered to the public, whatsoever they are called, intended to engender the hope of a gain which would be due, even partially, to chance, and for which a financial sacrifice is required from the participants by the operator".
This is not just a "lottery" in its usual sense. Many games may fall under this definition of a lottery.
What are the rules governing the use of this ban?
1.2 "The 3 steps test” to determine the legality of a game
A game becomes an offence if all 3 of the following conditions are met : If one of the 3 elements is missing, the game becomes lawful.
1. there is hope of a gain,
2. the offer is made to the general public by the organizers
3. the player pays to play
The chance factor in the game is no more a condition to prohibit a skill game since 2014.
These conditions were applied in a recent decision of the Court of Cassation of 14 May 2014 concerningthe "Francky surf" terminals. This game is illegal for the following reasons: it is possible to win prizes; the partcipant must pay to play; the organizers have acted knowingly.
► The first condition : the hope of a gain for the player:
Hoping to earn money, a prize, or a service with monetary value is sufficient to characterize the hope of a "gain".
If the player wins nothing and just pays to play for fun, this condition is not met and the game is legal.
What can be said about paying games that just offer free parties, virtual points, new powers for the characters, or a better ranking determined by chance (i.e. loot boxes) ? The question is open, and French legislation should be clarified on this point.
It seems that if the benefit offered to the player has a direct monetary equivalent in the game, such as an official currency or a real prize, the gaming operator is running a legal risk. Indeed, the player hopes to "win" something. On the contrary, higher rankings of the player, the benefit of new powers, a virtual currency with no real equivalent should not fall into the scope of the prohibition.
Remark : For hardware machines (i.e. slot machine) that rely on chance, article L324-2 al. 1 CSI still prohibits indirect benefit and especially winning freeroll. This provision, introduced in 1983, establishes a particularly severe system for all devices that may constitute gambling outside legal casinos. This provision was intended to reverse court decisions stating that obtaining free games from a slot machine was legal. Is this ban on freeroll hardware games machines applicable to online games? In principle, the notion of "device" excludes the Internet games. But a broad interpretation of the notion of "device" is possible for a court. There has been, to our knowledge, no French court decision where online games are concerned.
► The second condition : the public nature of the offer:
The game offers must be public to be illegal. This means that if the online game is accessible from France, it is illegal.
Providing the game to a limited group of people on a subscription basis, with prior registration or as part of a private club with sponsorship is not likely to transform the game into a private one.
Only money games played with close friends or family are legal.
►The third condition : a financial outlay on the part of the player:
The game must be free for the participant if it is to be declared legal.
The player must be required to to buy credits to enter the game, or to continue to play (Cass civil. Com., Jan. 20, 2015, No. 13-28521). The game is thereby not free, which makes it potentially illegal
Concerning the amounts paid by the player, the courts have been particularly stringent. They consider the financial participation of the player as essential, regardless of the amount or the nature of the expense for playing. A Few pennies is sufficient to prohibit the game. Even if he wins money, the simple contribution demanded to play makes the game illegal.
Offering a free channel and a paying channel is risky. In practice, some sites offer money access and free access at the same time. It could be argued that if the game is partially not free, the free condition is not respected. Others argue that the fact that since the expense is optional it falls into the legal category.
In practice, it appears that the courts seek to determine whether access to the game is really free and effective and analyse the reality and effectiveness of the free access to the game, even if in parallel there remains an optional premium channel with fees.
Judging from our analysis of recent cases, to be legal the gaming operator must prove that there are :
• a free channel for all games with hope of gain,
• an easy access to the free channel without compulsory expense linked
• an equal chance of winning chance on free and paying channels,
• sufficient information for the player on the existence of the free channel, not simply included in the rules of the game.
• Available statistics on the use of free channels., which would be a good indicator of their existence.
Failure to comply with all these points puts the gaming operator at criminal risk Indeed, free channels are often fictitious or extremely difficult to access. Moreover, if free access is largely open to the public, then what is the advantage for the organizer ? Why would a player pay if he can play for free with similar chances of gains?
The Francky Surf decision, which provides additional information on this topic (decision of the Supreme Court May 14, 2014) states:
"(...) The court also held that access to the game was necessarily subject to challenge either by a channel called "fee/free "which allowed access to the game only after payment of a access service on the internet, or by the channel called "free-free" which statistics showed to be little used compared to the "fee/free" channel, as well as being almost impossible to use and barely known to players who were only familiar with the paying option; (...), The court concluded that a purely free was actually almost illusory and in fact the game was only available after paying to access yet another paying service; it follows that even if, as argued forcefully by Gilles X, ... the money introduced into the terminal did not itself allow direct access to a game, but to the mandatory prior purchase of another service, this precaution was not enough to make access to the game completely free "
Associating free playing and paying for a separate service does not protect the operator. For example, the fact that the price paid to play also allows the participant to buy internet access time was enough to convict the organizer of the game (Visionex, C cass. May 28, 2014, No. 13-83759;. CA Paris, April 16, 2013, RG 11/02854) :
"(...) Given that that these terminals are clearly not a sweepstakes and that they encourage the player, in the prospect of gaining access to games presented as free, to make a cash payment, the Court of Appeals, (…), justified its decision;
The operator should distinguish the free game and access for a separate purchase. Otherwise, such a system will be perceived as an incentive to play illegal games.
1.3 The role of the law of 12 May 2010 in liberalizing some internet games
The Act of 12 May 2010 authorizes sports and horse betting and some circle games (currently only poker) on the Internet, provided that the gaming operator obtains a license from ANJ (the french regulator).
In practice, ANJ’s approval involves heavy investments due to the requirements of French law. In addition, a tax system makes the French market accessible to only the largest private operators .
But above all, the law of 2010 has not liberalized lotteries, casinos and other games of chance that remain banned on the internet. Casino games are not allowed on the Internet in France.
There is no approval of software online gambling games in France, outside the scope of ANJ’s control (i.e. horse and sports betting, poker).
Lotteries are still a monopoly of la Française Des Jeux (FDJ). Only the FDJ can legally offer those games.
2. Commonly used methods of circumventing the ban :
Five techniques are frequently used to circumvent the the laws banning online games
Some are legal, others far less so...
These solutions are to :
2.1. Baseing one’s activity abroad while targeting the French territory is illegal under French law
This is a dangerous solution. Often the operator of the game seeks to base its business in a more "welcoming" country, both legally and fiscally. However, this does not guarantee shelter from prosecution by the French authorities.
Indeed, directing one’s activities, toward French players from a website based abroad without the approval of the ANJ remains illegal (Cass. Criminal Division, 22 May 1997 No. 94-85933).
Regardless of the fact that a license was granted by a foreign state (i.e. Malta), even inside the European Union: there is no online gambling license granted by another State that is valid in France.
What are the measures taken by the French authorities against these sites?
they consist in blocking access to the games through French internet service providers(ISP)
First, there is an injunction to close the access site to French residents, then more seldom, an order to block access to players on the website by the ISP.
Around 1,500 sites and web hosts have received formal notification from ANJ indicating they must close the illegal site to French residents within 8 days. Most often, the site then proceeds to filter out French residents and prosecution stops there.
If the foreign site does not comply, ANJ asks the Tribunal de grande instance of Paris to order ISP to block access to the site.
So far, 33 orders to ISPs have been issued against 65 foreign illegal sites.
Much more rarely, there is real criminal prosecution against illegal sites. To our knowledge, only four foreign companies have been criminally prosecuted since 2010 for online gaming sites, including:
In February 2014, Personal Exchange Limited for the site mybet.com (fined € 300,000 fine), the Eveleaf gaming companies (€ 15,000 fine) and Gnuf Limited (fined € 15,000);
In September 2013, Globet International Sports betting LTD (fine € 200,000).
Additional measures for blocking financial flows are possible. It seems that these are difficult to implement according to of ARJEL’s the 2013 report ( p.40)
2.2 Organizing sweepstakes is legal under certain conditions without prior approval of french administration
As an exception to the prohibition, the Consumer Code contains specific provisions on the sweepstakes. Sweepstakes are widely used to promote business products and services in France.
► A legal solution:
These lotteries are legal under the article L121-20 of the Consumer Code and it is fully applicable to the Internet.
Since 2011, it has been possible to organize commercial lotteries reserved to one’s own customers and thus offer lotteries with "obligation to purchase".
For its part, Article L.320-6 7° CSI now provides that sweepstakes are a legal exception to the ban on game of chance.
Recently, the Law of 20 December 2014 dramatically reduced the constraints that previously existed in the Consumer Code.
Following a re-examination of the lottery regulations by the CSI in the spring of 2014, the government opted for a more liberal regime for sweepstakes in December Having weighed lottery regulations in spring 2014 for lottery in the CSI, the government opts for a liberal regime in December for sweepstakes. (See the Senate site for the justification by European law)
Thus, it is no longer prohibited to charge consumers who participate in sweepstakes There is no need to offer to reimburse consumer participation or to file the rules of the game to a French bailiff.
However, the principle of free play must be respected. It implies that the gambling does not include any expenditure by the player for the purchase of the game itself.It is not possible to sell tickets to the promotional lottery, nor surcharged SMS messages to participate in the promotional game. However, it is possible to charge the consumer for a purchase separate from the game.
For example, the opportunity to take part in a competition with a prize does not constitute an unfair commercial practice merely because that opportunity to take part in a game is the decisive reason for buying a newspaper offering the game only to its customers (CJEU, 9 November 2010, Case C-540-08).
► What limits for sweepstakes?
First, to prohibit a sweepstakes, it must be proved that it is an "unfair" commercial practice.
The "unfair" commercial practice is defined as being contrary to the requirements of professional diligence and having the capacity to distort the consumer’s economic behaviour. Distorting the consumer's economic behaviour means impairing the average consumer’s ability to make an informed decision and, that such impairment is significant enough to change the decisions the average consumer makes.
For example, according article L122-11-1 (8°) are deemed aggressive commercial practices that are intended to give the impression that the consumer will win a prize but must pay in advance to win it..
In addition, the new possibility of providing premium fees associated with Sweepstakes is going to generate "false" sweepstakes but "true" money games.
The question is where will the border line between legitimate sweepstakes with fees as defined in the consumer Code and the lottery demanding financial sacrifice which is prohibited by Criminal law (322-2 CSI).
How the lottery and consumer information are presented to the public will play a major role again. Writing rules or terms and conditions for the game to better inform the consumer and to clearly present the chance factor still seems unavoidable under the requirements of Article L. 120-1 of the Consumer Code.
We believe that to remain lawful, the main purpose of the operation must be selling the good or service the advertisement is made for. If the main purpose of the operation is to sell a game of chance, the game operator is putting himself at risk. He is then organizing gambling rather than a sweepstakes. The courts will have to draw the line in each case ....
To be continued...
Pascal Reynaud © 2021
Attorney at law at the Strasbourg bar (France)