The Australian Communications and Media Authority (ACMA) has informed certain poker operators around the country that plans to include satellite features on their new apps are likely in breach of the law.
In a letter dated Monday 31 August 2020 and obtained by PokerMedia Australia (PMA), the ACMA said it had received a number of inquiries about the legality of apps recently launched into the Australian market by “providers of place-based live poker tournaments” following publication of an article by PMA in early May.
That article, titled, “Australian Poker Tour seeking regulatory approval for real-money satellite feature on new APT App amid legality concerns,” cited plans by the APT to include real money satellites into their live events via the app, with players able to deposit cash and buy into satellites, advertised as having an entry fee of $6 per satellite.
While real money online poker is illegal under Australia’s Interactive Gambling Act (IGA), APT CEO David Miles stated at the time, “We’ve received a legal opinion that there is a section in the Act which prescribes that what we are doing, just offering satellites, can be justified.”
Miles added that the APT was basing its push to run online satellites on a legal opinion that “due to the fact there is no monetary value attached to the app and in currency there are no fees or profits derived through such activities, this can be classified in the field of an interactive game and not fall within Section 5 of the Act.”
The opinion also cites Section 8BB of the Act which makes some exceptions for “a game of chance or mixed chance or skill where the game is conducted in connection with a competition for the promotion of trade.”
In response, the ACMA stated in Monday’s letter that it “has become aware of various arguments as to how IGA compliance can be achieved, which we wish to put you on notice do not achieve that outcome.”
They include the argument that satellites are not being played for a cash prize but instead for entry into a live poker tournament or a poker chip set, which the ACMA says may still be considered something of value and therefore breaches part (i) of the IGA’s definition of an interactive gambling service.
The Act defines these as any service provided in the course of carrying on a business using an internet carriage service, any other listed carriage service, a broadcasting service, any other content service or a datacasting service, and where:
- The game is played for money or anything else of value; and
- The game is a game of chance or of mixed chance and skill, and
- A customer of the service gives or agrees to give consideration to play or enter the game.
The ACMA has also quashed the argument that no rake is being collected, stating this still constitutes providing a service in the act of carrying out a business. No trade promotion exclusion can be applied either because the trade being promoted is considered to be the provision of a gambling service, the ACMA added.
It is unclear exactly how, or if, the IGA applies to an app launched by the Australian Poker League (APL) in May, which offers satellite tournaments with prizes including tickets into the APL Million, held at The Star Sydney each March. All satellites on the APL app are free to enter.
“Free online poker services are not prohibited by the IGA and may be provided to customers in Australia, although it is important to note that in order for a service to be free it must genuinely not require any form of payment, whether monetary or otherwise,” the ACMA said.