Tuesday, 16 July 2019

by Ana Maria Calancea, Junior Lawyer at CA Luca Mihai Catalin

According to the legislation in force, the remote gambling organizer may proceed to suspend or close down a player’s account with that player’s prior notification in two distinct situations, either when the player violates the legal provisions, or when the player violates the gaming regulation of the gambling organizer.


Except for the two situations which lead to the account being closed down, the remote gambling organizer is required to give the players the option to request a temporary or permanent exclusion from or the discontinuance of the access to the game for a predetermined period time of at most 7 days. The lawmaker has provided this option as a protection method for vulnerable persons who are predisposed to becoming addicted to gambling.


However, the request for permanent auto-exclusion, regardless of the reason for the request, leads to the account being permanently blocked, apparently without having the possibility of reactivating it, even under the hypothesis according to which the auto-exclusion request was based on other reasons than gambling addiction.


Situations in which gambling participants request auto-exclusion from the online gambling activity as a result of not being satisfied with a certain operator’s offer, who subsequently return to the platform and realize that they no longer have the possibility of reactivating their gaming account, are frequent in practice.


In the following, we will analyze the legislation in force as to observe if there is any possibility to reactivate the gaming account when the reason justifying the auto-exclusion request is not linked to developing a gambling addiction.


The normative texts in force establish measures which are to be taken, in a mandatory fashion, by the remote gambling organizer in the situation of participants registering permanent auto-exclusion requests. We reiterate the fact that according to Article 132, para. (3) under the Methodological Rules for the implementation of GEO no. 77/2009, the gambling organizer shall provide any player with an option that would enable the latter to request an exclusion, temporary or permanent, from the game or a discontinuance of their access thereto for a predetermined period of time of at most 7 days.


Concurrently, by means of art. 132, para. (5), it is the remote gambling organizer’s duty to keep a register of players who requested the permanent or temporary exclusion from or the discontinuance of their access to the game of chance. Para. (6) of the same article stipulates the player’s possibility to request the deletion from the previously mentioned register, only after a period of 6 months from being registered into that respective register.


In this context, the following question is raised: can the gambling organizer, upon request, reactivate the gaming account of the auto-excluded participant, after the expiration of the 6 months from the application of the permanent auto-exclusion and registration within the respective register?


Interpreting in a restrictive manner, the conclusion drawn from this is that the permanent auto-exclusion from the gambling activity has an irreversible character, its effects being produced without a time limit, neither the participant, nor the organizer having the possibility of changing the applied measure.


Given the fact that the provisions under art. 132, para. (6) establish the possibility of deletion from the auto-excluded players’ register, without the law unequivocally establishing the deletion’s effects, the text may be interpreted as, once deleted from this register, the player may request the reactivation of his/her gaming account.


In the hypothesis in which the law text must be interpreted as the remote gambling organizers having the possibility of reactivating the auto-excluded participants’ accounts, it must be established if an explicit request from the account holders is imposed in this respect.


It is easily understandable that, for an active protection of the participants who request the permanent auto-exclusion as a result of a gambling addiction, restrictive conditions and stricter measures are imposed, reactivating the gaming account being in opposition with the purpose of this protection.


However, registering the gaming account on a platform licensed for remote gambling and accepting, without a doubt, the provisions which make up the organizer’s Terms and Conditions, actually represents the conclusion of a contract between the participant and the gambling organizer. Some participants choose to end the contractual relationship they have with the gambling organizer by requesting permanent auto-exclusion, without priorly examining the consequences of such a request. In this context, given the principles of the market economy, the subsequent reactivation of the gaming account, upon the account holder’s request, should not present legality issues, as it strictly represents the will of the parties and a prohibition in this respect is equivalent with the state interfering within the parties’ contractual relationship.


As we previously stated, the legislation in force provides the possibility of deleting participants from the register of players who requested the permanent of temporary exclusion from the gambling activity, however, it does not stipulate the effects of said deletion from the register. Given the fact that there is no explicit prohibition with regards to reactivating the gaming account after the deletion of auto-excluded players, it can be concluded that, at least theoretically, the remote gambling organizers have the possibility of reactivating the gaming account upon explicit request received from the account holders.


In conclusion, even though the legislation on the matter does not make a distinction, we believe that remote gambling organizers should have the prerogative of reactivating the accounts of participants who have excluded themselves from the online gambling activity as a result of other reasons than a pathological addiction to gambling, as the lawmaker, by means of enacting the auto-exclusion norms, has aimed at protecting vulnerable persons and not the authorities’ interference within the contractual relationships.


Author: Editor

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