Australian Government Continues Anti-Gaming Web Censorship

On Wednesday, April 21, 2021, the Australian Communications and Media Authority (ACMA) announced that it was again requesting that internet service providers (ISPs) block specific gambling websites, this includes online poker Australia websites as poker is considered gambling by the ACMA. According to the article posted to the ACMA's website, there are now 263 blocked domains. This is up 25 from the 238 prohibited web domains contained in the blacklist as of March 24.

Among the operators affected by this newest round of internet censorship are:

• Bao Casino
• Ozwin Casino
• Pokie Place
• Reels of Joy

How Does This Web Blocking Work?

Once a particular domain has been added to the blocked list, the ACMA coordinates with ISPs throughout the country to ensure that users located in Australia cannot access it. Whenever someone attempts to view any such proscribed content, they are instead presented with what is known as a “stop page.” This is a page alerting the visitor to the fact that the ACMA has determined that the site is in violation of the law.

An Example of a Stop Page Shown to Australians Who Attempt to Access Blocked Web Content

The authorities began this ISP-level blocking of international real money gaming sites in November 2019. At that time, only two organisations were targeted by the ACMA: Fair Go Casino and Emu Casino. However, this list has been regularly expanded until it now contains more than a hundred online gaming firms and 263 individual domains (Some of the affected companies manage multiple web domains).

Legal Justifications

The ACMA bases its efforts to combat online betting services on the 2001 Interactive Gambling Act as updated by the Interactive Gambling Amendment Bill (IGAB) of 2016 (actually passed into law by Parliament in August 2017). This legislation prohibits entities that do not hold a valid license granted by an Australian regulatory body from conducting wagering business online. The ACMA is the agency tasked with enforcement of these provisions.

The ACMA Has Broad Enforcement Powers Under the Interactive Gambling Act

This prohibition is a lot more severe than it may appear at first glance. While there are Australian regulatory bodies that issue licenses for sports betting, most notably the Northern Territory Racing Commission, the situation as regards online casino games and poker is different. There are not any competent authorities within the country that have a licensing regime in place for these forms of gaming. Thus, the ban on unlicensed operators is really a blanket suppression of all online poker and casino enterprises.

The power to request IP blocking mechanisms from ISPs is contained section 313 of the Telecommunications Act of 1997, which states in part:

313 Obligations of carriers and carriage service providers

    (1) A carrier or carriage service provider must, in connection with:
       (a) the operation by the carrier or provider of telecommunications networks or facilities; or
       (b) the supply by the carrier or provider of carriage services;
do the carrier’s best or the provider’s best to prevent telecommunications networks and facilities from being used in, or in relation to, the commission of offences against the laws of the Commonwealth or of the States and Territories.

Thus, the internet service providers, or carriers as they are called in this law, are legally required to cooperate with the authorities in preventing gambling sites from soliciting custom from Australia's citizens.

Procedure for Blocking Web Pages

Though the ACMA has significant powers when it comes to internet gaming oversight, it also must adhere to certain protocols when attempting to block websites that it does not like. Therefore, there's a set of regulations that govern it. Among the rules that the ACMA follows when it seeks the cooperation of ISPs to prevent users from accessing specified web domains are:

• Each “disruption request,” as they are called, must be approved by the Chair or Deputy Chair of the ACMA or an ACMA Senior Executive Service officer
• Requests can only be made in cases involving serious criminal or civil offences or national security threats
• The ACMA considers a variety of factors, such as the applicability of other enforcement methods, the projected effectiveness of the disruption, and the costs of said disruption, when balancing the desirability of blocking a site against the commitment to a free and open internet
• Before making a disruption request, the ACMA consults with the ISPs involved regarding cost, targeting the disruption to be a specific as possible, and the ISPs' own views on the request
• Each disruption request is only valid for a specified timeframe
• Each year, the ACMA provides metrics regarding the number of disruption requests made, the websites blocked, and the reason for blocking each site

Other Tools Available

The blocking of websites is only one of the mechanisms that the ACMA uses to attempt to drive offshore gaming groups from the Australian market. It has other techniques for promoting compliance, like sending cease-and-desist letters, filing lawsuits, and liaising with other licensing jurisdictions worldwide to achieve common goals.

New Jersey Is One of the Foreign Jurisdiction With Which the ACMA Works on Gambling Matters

According to statistics released by the ACMA, more than 130 online gambling services have stopped serving the country since the new, tougher rules against them began to be enforced in 2017. Some of them acted in accordance with directives sent to them by the government, but others read the writing on the wall and voluntarily excluded themselves from the Australian market once they saw how seriously the ACMA was pursuing its goals with regard to unlicensed gambling.

Some of the Gaming Corporations That Have Left Australia

Reasons for the Crackdown

It's one thing for a type of activity or commerce to be declared technically illegal and quite another for officials to actually try to do anything about it. In the ACMA's case, it has taken action against hundreds of real money gaming companies, and so we have proof positive that it views this fight as one that it isn't about to back away from.

The stated reasons for putting pressure on these sites often invoke the importance of consumer protection. Because these gambling destinations are unregulated by the Australian government, the theory goes, customers have little recourse if the games are rigged or their money is stolen by dishonest operators.

However, by refusing to make any licenses available for online poker and casino providers, the government is effectively tarring all such services with the same brush. Some of the corporations on its blacklist are indeed known for dishonest behaviour, but others, like Ignition Casino and Wild Joker Casino, have excellent reputations for fair games and reliable payouts. Unlike with other industry blacklists, the one maintained by the ACMA therefore does little to inform players of which fraudulent sites they ought to avoid, and it does not steer customers toward more trustworthy options either.

Widespread Opposition

As the Interactive Gambling Amendment Bill was progressing through the legislative system in 2017, there was significant opposition to it.

Given the wide range of legal gambling available to Australians, including lotteries, land-based casinos, racetrack wagering, and pokie machines in thousands of pubs and clubs, some questioned the effectiveness and wisdom of excluding internet casinos and poker rooms from licensure. Indeed, many speculated that it is the powerful homegrown gambling industry that was behind the prohibition of online real money gaming, not because of some desire to help problem gamblers or protect consumers but rather in order to keep their profit margins safe from outside competition.

It is true that among the entities that tendered submissions to Parliament in support of the IGAB were Clubs Australia and Tabcorp. Clubs Australia is a national organisation representing the interests of thousands of licensed clubs, many of which offer regulated gambling services. Tabcorp is a leading provider of lottery, keno, sports betting, and racebook services in Australia.

Poker Players Especially Upset

Aficionados of the card game poker felt strongly that their favoured pastime ought to be excluded from any prohibition on internet gaming because it is a game of skill although chance does play a large role in short-term results. The Australian Online Poker Alliance was able to collect 2,920 signatures on a petition entitled “Keep Online Poker In Australia.”

Many of the concerns of the poker-playing public were noted and raised in Parliament by then-Liberal Democratic Senator David Leyonhjelm. On March 21, 2017, he gave a speech in which he commented:

What we are basically saying here is that one kind of playing poker is okay, but another kind of playing poker is not okay because it is online. Seriously! This is the 21st century. Almost everything is online these days, and to pretend that we can regulate so that you can do one but not the other is dreaming. I think it is very bad legislation. We really should not entertain it.

Leyonhjelm also famously counselled players that in the event that the legislation passed, despite his best efforts, they should “screw the government” and continue to play at offshore sites, using a virtual private network (VPN) if necessary. He introduced an amendment that would exclude poker from the provisions of the IGAB, but this amendment was unsuccessful.

Circumvention of IP Blocking Commonplace

VPNs, which can make users' computers appear to be located in another part of the world, were recommended by Senator Leyonhjelm, but they are actually not needed. In fact, the use of VPNs might cause players to run afoul of the terms and conditions of their poker or casino site and so is unwise for this reason. There are several workarounds to thwart the ACMA's attempts to interfere with offshore wagering that do not depend on VPNs.

Many gaming providers have begun the registration of new domain names to supplement the ones that are being blocked. Although officials are quick to add the new websites to their list, there's an unavoidable lag time during which the secondary domain can accept customers and conduct business as usual.

However, communicating the new web addresses to existing and prospective players is a major hassle both for the companies and the individual players. Some customers have realised that they can change their DNS settings to use other servers rather than the ones owned by their ISPs. This allows internet gaming traffic to bypass the restrictions put into place by the ACMA and the telecommunications firms.

Players Nevertheless Inconvenienced

Businesses and individuals who run allegedly illegal interactive gambling enterprises are subject to criminal prosecution and civil fines that can mount to millions of dollars per day that the infractions take place. Ordinary players, on the other hand, are not penalised directly by the Interactive Gambling Act at all.

Thus, all customers who are able to get around the restrictions mandated by the ACMA can enjoy the types of games that they like without any fear of legal persecution. Still, they are inconvenienced because their preferred gambling providers may have exited the country voluntarily out of a desire to comply with Australian law. Furthermore, various banking regulations mean that certain credit cards and bank accounts are sometimes declined when used to fund online gaming accounts.

The Road Forward

The ongoing cat-and-mouse shenanigans between the ACMA and offshore gaming corporations show no signs of ending any time soon. Citizens head to international firms to get their fill of thrilling poker and casino action while the authorities try ineffectually to stop them. Prosecutions under the Interactive Gambling Act are rare because the executives of internet wagering companies are intelligent enough to avoid stepping foot on Australian soil, so the opportunity to arrest and prosecute them seldom arises.

This status quo is very unsatisfactory to many government leaders, providers of casino and poker services, ordinary players, civil liberties watchdogs, and free trade advocates. That's why some have pointed to legalisation, regulation, and taxation of the industry as a desirable solution to the impasse.

Joseph Del Duca, founder of the Australian Online Poker Alliance, met with government officials in early 2020 to discuss the possible legalisation of internet poker. However, first the brushfires and then the coronavirus presented officials with more pressing matters, and all plans to revisit the topic of legal internet poker were shelved.

Once the situation returns to normal, perhaps the Australian government will proceed with a sensible framework for online gaming licensure. Until that time, bureaucrats will try to dictate what people can and cannot spend their money on, individuals will do what they please anyhow, and the world will continue turning.