Criminal review of secondary online lotteries
By Prof. Dr Hans Kudlich and Dr. Bernd Berberich, Senior Associate Hambach & Hambach law firm
Secondary online lotteries offer bets on the outcome of other, mainly traditional state-run lotteries. Their prize scheme is based on the „primary lottery“. As the providers of such secondary lotteries are usually located abroad and do not have a German lottery license – but a permission to operate from another EU Member State – the question of criminal liability under Sections 284 ff. of the German Criminal Code arises. Even the applicability of the German Criminal Law is problematic. Following a recent judgement of the Federal Court of Justice on Sect ion 86a of the German Criminal Code, the better argument can be made for rejecting such applicability. This, however, is not in line with the previously prevailing opinion on online gambling. Nevertheless, when looking closely at the criminal liability, the applicable section is Section 287 rather than Section 284, as the course of the secondary lotteries, their risks and potential addictions are linked to the primary lotteries. This assessment orresponds with the position of the courts on commercial betting groups which have no contractual connection to the provider of the primary lottery.
Regarding the element of the offence „without permission of a public authority“ it can be concluded that the lack of such permission cannot be held against the providers as far as the permission cannot be obtained with reasonable effort due to an unlawful regulatory situation. Such an unlawful situation can be seen for the gambling industry as a whole. There as ones are in particular the insufficient enforcement of appropriate measures regarding the regulation of highly addictive gambling machines, the strict state monopoly in lotteries (which cannot be explained on the basis of the Inter-Stat e Treaty on Gambling), the in coherent regulation on the absolute online ban and the arbitrary determination of the maximum number of licenses for sports betting. If, for these reasons, impunity of the organiser is assumed, this also applies to affiliates of the organiser and to the players due to the accessoriness of participation, especially as there is no provision for the area of lotteries that equals Section 285 of the German Criminal Code.
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