Law 326/2022 – The new legislative challenge in the field of gambling
By:
Nicoleta Bărăgan, Definitive lawyer
Corina Ciobanu, Definitive lawyer
Teodora Luca, Definitive lawyer
C.A. Luca Mihai Cătălin
A difficult year, full of trials for the gambling industry is coming to an end. With the hope that the challenges of 2022 will have been the most difficult, we lay down these lines as a manifesto against the false information that unfairly hangs over the industry, that is disseminated with increasing appetite by the media and that is, unfortunately, also taken up in the discourse public of some first-rank representatives of some public authorities, the effects being felt at the level of normative acts issued.
An exhaustive analysis of the rules issued in the field during this year, regarding the application of which there are still uncertainties, does not fit in the pages of a magazine, but an eloquent example is the most recent normative act adopted and entered into force at the beginning of December – Law 326/2022 for the amendment and completion of the Government Emergency Ordinance no. 77/2009 on the organization and exploitation of gambling.
The law project initiated by liberal deputy Florin Roman started from a heartbreaking case. Although a normative act should not “serve” an isolated situation, Stelian Caramitru did his best to introduce into law the obligation of land-based casinos to make the self-exclusion function functional for players, after the scams ruined his son’s life, in the hope that the provision will help others. In other words, Caramitru wants to stop allowing his boy to enter casinos. This feature only exists for online games.
The man is a civil servant in a state body based in Bucharest. He does not want to involve the institution in his personal problems, so he chooses not to reveal his name. He says that everyone avoided him, including the press, before finding an agreement with Florin Roman, otherwise a former minister caught with a lie in his CV and forced to resign from the Government, an institution that subordinates ONJN through the Ministry of Finance. (source: www.playresponsibly.ro).
The initiator’s approach therefore started from a particular case; it is indisputable that the intention of the father who moves mountains to find his son’s salvation is justified on a personal level.
It cannot, however, be a sufficient argument to understand the lack of objective understanding of the field by those called to regulate it.
Can anyone imagine that alcohol addiction will be prevented by creating databases that include all the people who ever buy such a drink? I think the answer is obvious.
Mutatis mutandis, will simply registering all entrants (not necessarily taking part in their gambling) be a sufficient tool to prevent addiction, especially since this notion is itself up for debate?
A first step necessary for the regulation to be effective and serve the purpose intended by the initiator was public consultation (at least, theoretically, still mandatory) with industry representatives so that the new provisions are integrated into the pre-existing legislative system and to be able to ensure applicability and efficiency.
In the absence of consultations, the resulting regulation makes it objectively impossible for gambling operators to understand and, consequently, to fulfill the obligation. On the other hand, the regulation raises significant issues of unconstitutionality.
The fundamental right to intimate and private life is regulated by the provisions of Article 26 of the Romanian Constitution – Intimate, family and private life, according to which:
“(1) Public authorities respect and protect intimate, family and private life.
(2) The natural person has the right to dispose of himself, if he does not violate the rights and freedoms of others, public order or good morals.”
The exercise of the fundamental right to intimate, family and private life can be restricted only with compliance with the imperative conditions stipulated by the provisions of Article 53 of the Romanian Constitution – Restriction of the exercise of certain rights and freedoms, according to which:
“(1) The exercise of certain rights or freedoms can be restricted only by law and only if it is required, as the case may be, for: the defense of national security, order, public health or morals, the rights and freedoms of citizens; conducting the criminal investigation; preventing the consequences of a natural calamity, a disaster or a sinister serious disaster.
(2) Restriction may be ordered only if it is necessary in a democratic society. The measure must be proportional to the situation that determined it, to be applied in a non-discriminatory manner and without prejudice to the existence of the right or freedom.”
The provisions of Article 8 of the European Convention on Human Rights – the right to respect for private and family life and of Article 8 of the Charter of Fundamental Rights of the European Union – Protection of personal data, were disregarded by the Romanian legislator.
Thus, according to the provisions of Article 8 of the European Convention on Human Rights – the right to respect for private and family life:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. The interference of a public authority in the exercise of this right is not allowed except to the extent that this interference is provided for by law and if it constitutes a measure that, in a democratic society, is necessary for national security, public safety, the economic well-being of the country , the defense of order and the prevention of criminal acts, the protection of health or morals, or the protection of the rights and freedoms of others.”
Also, according to the provisions of Article 8 of the Charter of Fundamental Rights of the European Union – Protection of personal data:
“(1) Every person has the right to the protection of personal data concerning him.
(2) Such data must be treated correctly, for the specified purposes and based on the consent of the interested person or on the basis of another legitimate reason provided by law. Any person has the right of access to the collected data concerning them, as well as the right to obtain their rectification.
(3) Compliance with these rules is subject to the control of an independent authority.”
In consideration of Article 8 of the European Convention on Human Rights, as consistently stated in the jurisprudence of the European Court of Human Rights, the state has two main obligations:
– the negative obligation not to limit the exercise of citizens’ right to private life, except to the extent that the public authority’s interference in the exercise of this right is necessary to ensure national security, public safety, the economic well-being of the country, the defense of order and the prevention of criminal acts, protecting health or morals, or protecting the rights and freedoms of others;
– the positive obligation to take, through the adopted normative acts, all the necessary measures so that the rights provided for in art. 8 of the Convention to be respected even in relations between natural persons or between natural persons and legal persons under private law. In this sense, the European Court of Human Rights ruled in the Lozovyye case against Russia, point 36, where it was noted that „In particular, although the purpose of art. 8 is essentially to defend private individuals against arbitrary interference by public authorities, it is not limited to obliging the state to refrain from such interference; in addition to this essentially negative obligation, there may be positive obligations inherent in the effective respect of private or family life.”
But, the legal provisions recently entered into force not only do not ensure the effective respect of private life, but even directly limit the exercise of this right.
The obligations imposed on each economic operator, namely the obligation to identify the player on each occasion when he enters a location where games of chance are organized and operated, followed by the creation of electronic databases in which the identification data is recorded of them for a period of 5 years, constitutes an interference in the private, intimate life of the player, who has the right to freely decide how he carries out his occasional or current activities, without access to them being conditional on identification or of the acceptance regarding the collection of his personal data.
As held by the European Court of Human Rights in the case of Dudgeon v. the United Kingdom, points 51-53, in order to determine whether a certain violation of art. 8 is “necessary in a democratic society”, the interests of the state and the right of the citizen must be balanced. In this context, the adjective “necessary” is not as flexible as the terms “useful”, “reasonable” or “opportune”, but implies the existence of a “compelling social need” to resort to the interference in question, and the national authorities have the obligation to carry out the initial assessment of the pressing social need in each individual case. The Court also considers that a restriction on a right provided for by the Convention can be considered “necessary in a democratic society” — the hallmarks of which are tolerance and open-mindedness — only if, among other things, it is proportionate to the objective legitimately pursued.
By legitimate objective pursued is exhaustively understood the preservation of national security, public safety, the economic well-being of the country, the defense of order and the prevention of criminal acts, the protection of health or morals, or the protection of the rights and freedoms of others. However, the state’s task is not only to identify a legitimate objective to justify the interference, the state having the obligation to analyze and demonstrate not only that the interference corresponds to a pressing social need, but that it is proportionate to its purpose.
However, neither the Law, nor even the Explanatory Memorandum of the initiator includes an assessment of the impetuous social need that would determine the establishment of the obligation to identify all players who enter the locations specialized in the field of gambling.
The legitimate objective declared by the Statement of Reasons consists in limiting addiction in the field of gambling, a limitation that is proposed to be achieved by: “the introduction of a centralized electronic database for the gambling organizers to manage all self-excluded and undesirable persons” and by obliging the organizers “to keep electronic records of the identification data of the persons and to identify persons entering the premises”.
But, the declared objective is not proportional to the citizen’s fundamental right to private life, as it cannot be considered legitimate to identify and store the personal data of all players by all gambling organizers, every time a player chooses to enter a location, only for the purpose of detecting self-excluded or undesirable persons, the state authorities having the obligation to identify and regulate other mechanisms that apply only to the categories of persons concerned and by no means to all natural persons participating in the game.
Any surveillance measure of natural persons capable of interfering with the private life of the citizen, such as the measures imposed by Law 326/2022, must have a clear, precise and detailed legal basis, because a surveillance measure can represent a threat serious for the rights guaranteed by art. 8 of the European Convention on Human Rights.
In the sense of the above, the Constitutional Court of Romania also ruled by Decision no. 1258 of October 8, 2009, the constitutional review court noting in the content of the decision that:
“(…) in accordance with the limitation principles expressed in the jurisprudence of the European Court of Human Rights, for example the case of Klass and others against Germany, 1978 or the case of Dumitru Popescu against Romania, 2007, the normative act regulating measures of the nature to interfere with the exercise of the right to private and family life, correspondence and freedom of expression must contain adequate and sufficient guarantees to protect the person from the possible arbitrariness of the state authorities.
The Constitutional Court considers that the lack of a precise legal regulation, which accurately determines the scope of those data necessary for the identification of natural or legal users, opens up the possibility of abuses in the activity of retention, processing and use of data stored by providers of electronic communications services intended for the public or of public communication networks. The limitation of the exercise of the right to private life and to the secrecy of correspondence and freedom of expression must also take place in a clear, predictable and unequivocal manner, so as to remove, as far as possible, the possibility of arbitrariness or abuse authorities in this field. The addressees of the legal rule represent, in this case, all natural and legal persons in their capacity as users of electronic communications services intended for the public or of public communications networks, so a wide sphere, encompassing legal subjects, members of civil society. Or, they must have a clear representation of the applicable legal norms, so that they adapt their conduct and foresee the consequences arising from their non-compliance. In this sense is also the jurisprudence of the European Court of Human Rights, which, for example, in the case Rotaru v. Romania, 2000, ruled that “a rule is “foreseeable” only when it is drafted with sufficient precision, in such a way as to allow any person – who, if necessary, can call on specialist advice – to correct his conduct”, and in the case Sunday Times v United Kingdom, 1979, decided that “[ … ] the citizen must have sufficient information on the legal rules applicable in a given case and be able to predict, to a reasonable extent, the consequences that may arise from a determined act.” In short, the law must be, at the same time, accessible and predictable.
The Constitutional Court emphasizes that not justified use, under the conditions regulated by Law no. 298/2008, it is the one that, in itself, prejudges in an unacceptable way the exercise of the right to private life or freedom of expression, but the continuous, generally applicable legal obligation to store data. This operation equally concerns all recipients of the law, regardless of whether or not they have committed criminal acts or whether or not they are the subject of criminal investigations, which is likely to overturn the presumption of innocence and transform a priori all users of electronic communications services or by public communications networks in persons susceptible to the commission of terrorist offenses or serious crimes.
Even if in the analyzed situation the overturning of the presumption of innocence would not be questioned, the Court’s conclusion can also be analyzed from the perspective of a presumption of addiction applicable to any and all participants in gambling, in the context of the control exercised a priori, over all participants in activity which appears, obviously unfounded and in flagrant contradiction with the guarantees of proportionality, which the legislator must have in mind according to the constitutional text.
(…), the Constitutional Court does not deny the purpose itself considered by the legislator when adopting Law no. 298/2008, in the sense that it is imperative to ensure adequate and effective legal means, compatible with the continuous process of modernization and technology of the means of communication, so that the criminal phenomenon can be controlled and countered. That is precisely why individual rights cannot be exercised absurdly, but can be the object of restrictions that are justified depending on the goal pursued. The limitation of the exercise of some personal rights in consideration of some collective rights and public interests, aimed at national security, public order or criminal prevention, has always been a sensitive operation in terms of regulation, so that a fair balance between interests and individual rights is maintained, on the one hand, and those of society, on the other. It is no less true, as the European Court of Human Rights noted in the case of Klass and others v. Germany, 1978, that the taking of surveillance measures, without adequate and sufficient guarantees, can lead to “the destruction of democracy under the pretext of its defense.”
A thorough analysis of the provisions of Law 326/2022 would undoubtedly highlight other reasons for unconstitutionality.
Our intention is summed up to try to present only a series of arguments of a legal nature, which will serve to open the dialogue between the representatives of the state and those of the industry, so that, in the future, the legal regulation will meet the requirements of predictability and clarity and will can prove the effectiveness.
Undoubtedly, the dialogue will reveal a mature industry, much more responsible than is presented in the public space and which can generate viable solutions to improve the legislative framework.
