By Tony Coles
The recent announcement from the UK Government that it has decided to add Tasmania to the so-called "white list" but not to add either Antigua or Kahnawake, has again brought these arrangements to the forefront.
It will be remembered that under the new
UK regulation of all 
gambling (Gambling
Act 2005) which was brought into
force on September 1, 2007, the British
Gambling Commission regulates all
kinds of online gambling in the UK (an
activity which new legislation describes as
"remote gambling"). UK fiscal legislation
also provides for its taxation.
With a view to protecting the UK player against what the legislators regard as risky sites outside the British Gambling Commission's remit, the new UK law prohibits the advertising and marketing of such sites in the UK. It is noteworthy that it does not prohibit the use of such sites by players in the UK but merely their promotion and advertising.
Since the UK is part of the European Union, its legislation could not prohibit the advertising and promotion in the UK of online gambling lawfully provided from a licensed site elsewhere in the EU. Thus online sites licensed in, for example, Malta, can be lawfully promoted in the UK alongside sites licensed by the British Gambling Commission. In fact, many operators have opted to be licensed outside of the UK because of the unattractive taxation regime that the UK fiscal rules impose.
Furthermore, when the new UK legislation was passing through Parliament, it was thought unfair to exclude from the opportunity to promote in the UK operators licensed in a jurisdiction which, although outside the UK and outside the European Union, are nonetheless regarded as "first tier" and are thus acceptable to the UK Government.
The 2005 Act provided a machinery under which the UK Government could identify such "first tier" jurisdictions and add them to the so called "white list". In January 2007, the UK Government published a series of guidelines to be followed by jurisdictions which sought to be added to the "white list".
The guidelines set out a number of principles:
• The application had to be made by a government that holds the relative legislative and/or regulatory authority within a particular jurisdiction. The UK Government will take into account representations by other people and organizations but it will not accept an application other than from the government concerned. Thus it is not open to an operator based in such a jurisdiction to apply to the UK Government for the jurisdiction to be added to the "white list" and only the government concerned can do that, although the operator can add its representations in support of the application.
• The applicant government has to satisfy the UK Government that its regulatory regime provides for stringent regulatory control which, although not necessarily replicating the UK legislation, nonetheless satisfies the UK Government. The applicant government must address all of the issues which the UK regulations cover and is substantially similar in intention and effect. The applicant also has to show that its jurisdiction has the capacity, as well as the technical and regulatory ability and the political impetus, to enforce its own regime.
• The intention behind the guidelines is that the applicant government has to provide for its licensed operators substantially the same regulation as that provided under the UK rules so that the UK player has a very similar level of protection.
• Applications to the UK Government for inclusion on the "white list" can be made at any time. There is no backdating of "white listing" so that the operators within an applicant jurisdiction cannot rely upon the exemption from the prohibition on marketing and advertising in the UK unless and until the jurisdiction is included in the "white list".
Although most of the attention on the "white list" relates to its effect on online gambling, the provisions also apply to terrestrial gambling. Thus, unless a jurisdiction is on the "white list" (or is within the EU) its operators of terrestrial gambling establishments (such as casinos or bingo halls) cannot advertise in the UK. For example, because Nevada is not on the "white list", it is illegal for the operators of Las Vegas casinos to promote or advertise them in the UK. It is, of course, legal to advertise a hotel located in Nevada but it is now necessary to consider the extent to which that hotel’s gaming facilities can be mentioned before an offence is committed.
The UK Government originally announced that seven applications had been received for inclusion on the "white list" and two were initially approved, Alderney and the Isle of Man. Those from Alexander (Canadian Reservation), the Netherlands Antilles and Tasmania were rejected. Subsequently, in an announcement released by the UK Government just before the end of 2007, the UK Government announced:
• that following the introduction of amending tax legislation in Tasmania, the UK Government had reconsidered its application and had now added Tasmania to the "white list".
• that despite what it described as an ongoing careful assessment of the applications by Kahnawake and Antigua, the UK Government had decided not to "white list" them. The UK Government has not given any detailed reasons for its decision not to "white list" any of the failed applicants but it must be assumed that the failures arise because either:
• the applicant in question did not satisfy the UK Government that it is "... the government which holds the relevant legislative and/or regulatory authority ...";
• or, if it did, that the regulatory regime in the applicant jurisdiction did not properly address the same concerns as are covered by the UK law;
• or, if it did, that the applicant jurisdiction did not have the capacity, ability or political impetus necessary to enforce that region.
It is interesting to speculate on what might now take place. The example of Tasmania indicates that the UK Government is open to a reconsideration of an application if the circumstances in the applicant jurisdiction change. It is always open to an applicant to re-apply since there is no provision either in UK law or in the guidelines limiting an applicant to one try nor is any penalty imposed if its application fails. There would be little point in an applicant simply re-applying without identifying changes from an earlier failed application.
Although the guidelines indicate that the UK's Gambling Act contains no provision for any appeal from a refusal, it may well be open to an aggrieved applicant to seek the assistance of the UK courts on an application for a judicial review of the decision. Judicial review of decisions by Government officials and other public bodies is well established but its use in these circumstances would clearly be novel and it would be for the courts to decide the extent to which they would interfere. What is clear is that, because of the importance of the UK as a gambling market, it is unlikely that we have heard the last of applications for "white listing."
In addition to a thriving mainstream commercial law practice, Jeffrey Green Russell’s senior partner, Tony Coles, is renowned in the leisure industry for his specialist knowledge of gaming and betting law. He regularly speaks to international audiences on gaming issues and is a frequent contributor to gaming law periodicals and journals. He is currently Vice President of the International Masters of Gaming Law as well as being a member of the Society for the Study of Gambling, the Remote Gambling Association, the European Association for the Study of Gambling and the International Association of Gaming Attorneys. He can be reached at firms-arc@jgrlaw.co.uk