Teodora Luca, Senior Associate Lawyer, Mihai Cătălin LUCA Law Office
Consumers’ rights and online gambling
The quality of participant to gambling can be acquired, according to art. 7 from the Government Emergency Ordinance n. 77/2009 by the natural person major of age who has the legal right to participate to authorized gambling (respectively has full legal capacity). The legal text provides expressly that the participation to gambling presumes the unconditional acceptance of the rules of that game.
The provisions of art. 129 para. (1) and (2) from the Methodological norms establish the conditions for the participation to remote gambling, which is allowed only for the gamblers who have a unique gambling account and are recorded in the organizer’s information system.
In view of registering the gambling account, the participant has the obligation to transmit the information regarding: the name, first name, date of birth, valid e-mail address, address of domicile, user name, password, acceptance of the terms and conditions, voluntary confirmation of being over 18 years old. At the acceptance of the registration, the gambling platform will generate automatically a unique code assigned to the gambler. (art. 129 para. (2) from the Methodological Norms).
The conditioning of the participation to gambling by the unconditional acceptance of the regulations (including of the terms and conditions) applicable at the organizer level finds its justification in the necessity of assuring the gamblers the same conditions for the performance of the activity (art. 21 from OUG 77/2009) and to allow thus the permanent monitoring of the activity by the competent authority.
Thus, the provisions of art. 21 from the Ordinance impose the gambling organizers to assure the gamblers participation to the game with equal chances, at equal stakes, played on random elements or, in the case of bets, on elements of hazard and skill of the gamblers. The participation to the game with equal chances is assured by the gambling organizer by the agency of the terms and conditions shaping a identical gambling framework for all the participants.
Also, the provisions of art. 140 from the Methodological Norms provide expressly that the performance of remote gambling between organizer and participant is made in accordance with the terms and conditions established by the organizer and with the gambling regulation, in whose contents will be provided the following information: the organizer’s contact data, identification and detailed description of the procedure of registration of the gamblers, respectively of the creation of the gambling accounts, description of the conditions for the cancellation or closure of the gambling accounts, description of the procedures of temporary or definitive self-exclusion from the game, as well as the procedures of interruption of the access to the gambling platform, detailed description of the games offered to the participants, means of transfer of the amounts obtained from the gambling to the gambling account and the payment account of the participant, conditions of securing the data transmission from and to the gambler, consequences of any attempts of fraud of the legal provisions or of the regulations.
Any modification of the terms and conditions or of the gambling regulation will be submitted for approval to the Supervisory Committee of ONJN.
The gambling regulations and the applicable terms and conditions are part of the documentation analyzed by the authority in view of awarding the organization license / authorization of exploitation of the activity, any modification thereof being allowed only with the prior approval by the authority.
If from a commercial perspective the Terms and conditions applicable on online gambling platforms have the significance of a contract, establishing mutual rights and obligations, from the consumer’s perspective, they have the value of a standard contract, for which the professional doesn’t need to prove the individual negotiation of the clauses.
The main rights of the consumers in their relation with the gambling organizers are, according to the law:
a) to be protected against the risk of being provided a service which may prejudice their legitimate rights and interests;
b) to be fully informed, correctly and precisely on the essential characteristics of the services, so that the decision they make in relation to them corresponds as much as possible to their needs, as well as to be educated in their quality of consumers;
c) to have access to markets which may assure them a varied range of quality products and services;
d) to be compensated for the damage generated by the inappropriate quality of the services, using in this respect the means provided by the law.
(Consumers’ rights and online gambling to be continued in the next edition)