Section 333: Territorial application: remote advertising
819.This section clarifies the application of these provisions where the advertising is by remote means, for example by email or television broadcast.
820.For remote advertising of gambling to fall within the scope of Part 16 it has to satisfy three tests. In the case of section 331 (the remote advertising of foreign gambling), it is only the first of the three tests which has to be satisfied. Furthermore, in the case of foreign gambling, the references to Great Britain in the first test should be read as references to the United Kingdom, because section 331 extends to Northern Ireland.
821.The first test is broadly that the advertising must be targeted at people in Great Britain. In particular the advertising must involve:
providing information intended to come to the attention of a person in Great Britain;
sending a communication intended to come to the attention of a person in Great Britain;
or making data available with a view to its being accessed by a person in Great Britain or in circumstances where that is likely to happen.
822.The second test applies in the case of advertising that is either broadcast by television or constitutes an information society service within the meaning of Directive 98/34/EC (on electronic commerce). Information society service means “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing … and storage of data, and at the individual request of a recipient of a service”.
823.Where the advertising is broadcast by television the provisions of Part 16 will only apply if the broadcaster is either under the jurisdiction of the United Kingdom for the purposes of Directive 89/552/EEC (Television Without Frontiers) or is not under the jurisdiction of an EEA state for the purposes of that Directive. The purpose of this particular test is to ensure that the provisions do not apply to advertising where the broadcaster is properly regulated by another EEA State.
824.Where the advertising constitutes an information society service, the provisions of Part 16 only apply where the service provider:
is established in the United Kingdom for the purposes of Directive 2000/31/EC,
is established in a non-EEA state for those purposes, or
has been notified that the conditions for derogation in Article 3(2) of that Directive have been satisfied in relation to the service provider.
825.Directive 2000/31/EC is concerned with contributing to the proper functioning of the Internal Market by ensuring the free movement of information society services between Member States. In broad terms the Directive establishes that a provider of information society services is to be regulated by the State in which it is established. Therefore, in general, where advertising constitutes an information society service, the provisions of Part 16 only apply where the provider is either established in the United Kingdom or outside the EEA. Article 3(4) of the Directive enables Member States to derogate from this general rule where the provider of an information society service not established in its country presents a serious and grave risk in respect of public policy matters such as the protection of consumers. The possibility to derogate under Article 3(4) of the Directive is also reflected in the section.
826.The third test is that the gambling itself takes place in Great Britain where it is non-remote gambling; or, where it is remote gambling, that at least one piece of remote gambling equipment is situated in Great Britain.
