Gaming Law 2020 Comparisons

Last Updated November 24, 2020

Contributed By GVZH Advocates

Law and Practice

Authors



GVZH Advocates is one of Malta’s leading legal practices actively involved in e-commerce and remote gaming law, offering a full spectrum of services, including company registration, preparation and co-ordination of all aspects of the application process with the Malta Gaming Authority (MGA) and ongoing support for operators establishing their operations in Malta. GVZH Advocates is a modern and sophisticated legal practice based in Valletta, Malta, composed of top-tier professionals, firmly rooted in decades of experience in the Maltese legal landscape. Built on the values of acumen, integrity and clarity, the firm is dedicated to providing the highest levels of customer satisfaction, making sure that legal solutions are not only soundly rooted and rigorously tested, but also meticulously implemented. The firm understands that today's business environment requires legal advisers who have both skills and expertise geared towards effectively addressing specific and technical issues in the context of complex projects, transactions and disputes.

The regulatory framework applicable to online and land-based gaming in Malta is consolidated under the Gaming Act (Chapter 583 of the Laws of Malta) and Subsidiary Legislation (SL) 583.01 to 583.12, adopted under that law. The SL addresses various aspects of gaming operations, including the following:

  • the establishment of the Malta Gaming Authority (MGA), its functions and powers;
  • the protection of players, minors and vulnerable persons;
  • the establishment of a vulnerable gaming fund;
  • gaming licence fees;
  • the requirement of a licence or authorisation for certain gaming activities;
  • key functions;
  • compliance and enforcement;
  • regulations relating to gaming premises;
  • regulations relating to advertisement;
  • regulations governing gaming tax;
  • the establishment of a social causes fund; and
  • data retention.

The MGA issued several directives between 2018 and 2020, which are binding on licensees, providing additional guidance in relation to the interpretation and implementation of the laws and regulations.

Since the implementation of the 2018 regulatory framework, the MGA has issued the following directives and rulings:

  • 2018 – the Start-Up Undertakings Directive, the Player Protection Directive, the Gaming Authorisations and Compliance Directive, the Directive on the Calculation of Compliance Contribution and the Alternative Dispute Resolution (ADR) Directive;
  • 2019 – the National Lottery (Continuation of Concession and Licence Terms) Ruling, the Gaming Premises Directive, the De Minimis Games Directive, the Gaming Devices Ruling Directive, the Amusement Machines Directive, the Enhanced Automated Reporting Platform (Land-Based) Directive and the Directive on the rules applicable to Amusement Machines and Low Risk Games; and
  • 2020 – the VAT Fiscal Receipt Lottery Directive, the Low Risk Games in Care and Nursing Homes Ruling and the Directive on the Key Function of the Prevention of Money laundering and the Financing of Terrorism.

With the adoption of the 2018 regulatory framework, online and land-based gaming activities are now regulated by the same legislation. For example, applicants applying for a land-based gaming licence are required to seek and obtain an additional approval for both the gaming devices they offer to consumers as well as the premises from which the licensed gaming devices are operated.

The Gaming Authorisations Regulations provide that operators in both the online and land-based sectors require a licence when providing or carrying out a gaming service, or providing a critical gaming supply from Malta or to a person in Malta, or through a Maltese legal entity, unless exempt. A licence may be obtained to provide any of the following games:

  • online betting;
  • bingo;
  • casino;
  • lotteries;
  • fantasy sports;
  • poker; and
  • social gaming.

Since the early 2000s, Malta has secured its position as a leading and well-regulated European remote gaming jurisdiction and is estimated to host around 10% of the world’s online gaming companies by trading volume.

See 12.3 Fantasy Sports.

Land-based betting, bingo, casino, lotteries and poker are also permissible and regulated. A licence is required to provide or supply any of these games, with the exception of social gaming. A licence is not required for games that the MGA classifies as low-risk games. In such cases, a low-risk permit would be required. Such permit is only issued for a single event, expires as soon as the event is concluded, is non-transferable unless the MGA’s prior approval is obtained, and is non-renewable. Examples of low-risk games include non-profit bingo games in which the stake does not exceed EUR5 per player and more than 90% of the net proceeds go to a good cause (charity, sports, education, etc). 

See 5.1 Premises Licensing.

The key legislation that applies to the gambling sector is as follows:

  • the Gaming Act – Chapter 583 of the Laws of Malta; 
  • the Responsible Gaming Fund Regulations – SL 583.01 (not yet in force);
  • the Gaming Malta Fund Regulations – SL 583.02;
  • the Gaming Licence Fees Regulations – SL 583.03;
  • the Gaming Definitions Regulations – SL 583.04;
  • the Gaming Authorisations Regulations – SL 583.05;
  • the Gaming Compliance and Enforcement Regulations – SL 583.06;
  • the Gaming Premises Regulations – SL 583.07;
  • the Gaming Player Protection Regulations – SL 583.08;
  • the Gaming Commercial Communications Regulations – SL 583.09;
  • the Gaming Tax Regulations – SL 583.10;
  • the Social Causes Fund Regulations – SL 583.11; and
  • the Retention of Data (MGA) Regulations – SL 583.12.

Other supporting legislation and directives that apply to the gambling sector are as follows:

  • the Prevention of Money Laundering Act – Chapter 373 of the Laws of Malta;
  • the Prevention of Money Laundering and Funding of Terrorism Regulations – SL 373.01;
  • the Consumer Affairs Act – Chapter 378 of the Laws of Malta;
  • the Electronic Communications (Regulation) Act – Chapter 399 of the Laws of Malta;
  • the Data Protection Act – Chapter 586 of the Laws of Malta;
  • the Prevention of Corruption in Sport Act – Chapter 593 of the Laws of Malta;
  • the Requirements as to Advertisements, Methods of Advertising and Directions applicable to Gambling Advertisements – SL 350.25;
  • the Start-Up Undertakings Directive 2018;
  • the Player Protection Directive 2018;
  • the Gaming Authorisations and Compliance Directive 2018;
  • the Directive on the Calculation of Compliance Contribution 2018;
  • the Alternative Dispute Resolution (ADR) Directive 2018;
  • the National Lottery (Continuation of Concession and Licence Terms) Ruling 2019;
  • the Gaming Premises Directive 2019;
  • the De Minimis Games Directive 2019;
  • the Gaming Devices Ruling Directive 2019;
  • the Amusement Machines Directive 2019;
  • the Enhanced Automated Reporting Platform (Land-Based) Directive 2019;
  • the Directive on the rules applicable to Amusement Machines and Low Risk Games 2019;
  • the VAT Fiscal Receipt Lottery Directive 2020;
  • the Low Risk Games in Care and Nursing Homes Ruling 2020; and
  • the Directive on the Key Function of the Prevention of Money laundering and the Financing of Terrorism 2020.

The term "gambling" is not specifically defined in the Gaming Act. However, the activity of gambling falls within the operative term "gaming", which is used in Maltese legislation. "Gaming" is defined as “an activity consisting in participating in a game, offering a gaming service, or making a gaming supply.” A "game" is defined as “a game of chance or a game of skill.”

A "game of chance" means “an activity the outcome of which is determined by chance alone or predominantly by chance, and includes but is not limited to activities the outcome of which is determined depending on the occurrence or outcome of one or more future events."

The general definition of "gaming" applies to all gambling/gaming, regardless of the channel of distribution adopted by the operator to reach its consumers. There is no distinction between online and land-based gaming, and thus the general definition covers both types of gaming. 

See 3.3 Definition of Land-Based Gambling.

The major offences under the Gaming Act are outlined in the Third Schedule of the Act and include the provision of a service or supply without the necessary authorisation, aiding or abetting such provision, and failing to effect payments to the MGA. Other key offences arising under other applicable laws include money laundering offences and data protection offences, both of which are directly relevant for gaming operators. Sanctions also apply to lesser offences, such as the breach of, or non-compliance with, other areas of applicable legislation, including a breach of advertising regulations or compliance breaches. 

Any person found guilty of undertaking unlawful gaming activity as per the Third Schedule of the Gaming Act is liable to a fine of between EUR10,000 and EUR500,000, or to imprisonment for up to five years, or to both a fine and imprisonment. As an alternative to criminal court proceedings, the MGA may, by way of agreement with the offender, and subject to the rectification of the breach, impose a penalty of EUR500,000 for each infringement, or a sum of EUR5,000 for each day of infringement or non-compliance, or any other administrative sanctions. Once such agreement is concluded, the offender’s criminal liability under the Gaming Act will be extinguished. The agreement will only be effective if it is accompanied by the payment of the sum due or the provision of sufficient security for its payment.

Any machine or other device, and any money used in the commission of the offence will be seized and forfeited in favour of the MGA and may be appropriated in favour of the Malta Gaming Fund. In the case of a breach of any other regulatory instrument that is not outlined in the Third Schedule, the MGA may impose an administrative penalty of up to EUR25,000 for every breach or non-compliance, or an administrative penalty of up to EUR500 for each day on which such breach persists. The MGA may impose fines for non-compliance in the following three main scenarios:

  • to ensure that the licensee rectifies any default;
  • to deter future non-compliance and thus ensure that Maltese licensees uphold high standards of behaviour consistent with regulatory requirements; and
  • for the purpose of ensuring that any financial gain that the licensee may have made through non-compliance is eliminated.

On 26 November 2019, the MGA published an Explanatory Note on "Guiding Principles for the Application of Enforcement Measures", setting out the principles that should guide the MGA in its application of enforcement measures when a breach occurs. This Explanatory Note lays down the aims that the MGA should be guided by in deciding the appropriate form of enforcement action; ie, in determining whether it should offer regulatory settlement or proceed with the commencement of criminal proceedings. It also lays down principles for the quantification of penalties.

The Responsible Gaming Fund Regulations, SL 583.01, have been published but are not yet in force. 

The Gaming Act established the main regulatory body responsible for the governance of all gaming activities (including land-based and remote gaming sectors) in Malta, the Malta Gaming Authority. The MGA’s main functions include the issuance of licences, approvals, certificates and recognition notices, as well as the monitoring of the conduct of operators in the field. The MGA is also responsible for preventing, detecting and combatting criminal activity in the gaming sector, and for ensuring that games are operated and advertised fairly and responsibly. 

The regulatory approach adopted by the MGA is risk-based and prescriptive. In August 2018, the Gaming Act and various subsidiary legislation came into force. This framework broadened the regulatory scope and increased the MGA’s oversight. It moved towards an objective-based regulatory approach, allowing for innovation and ensuring that the regulatory objectives are attained.

A gaming service is defined as the availability for participation by players as an economic activity, whether directly or indirectly, and whether alone or with others. The MGA may issue the following licences.

  • A Gaming Services Licence – a business-to-consumer (B2C) licence to offer or carry out a gaming service. A B2C licence may constitute any one or more of the following game types:
    1. Type 1 gaming services – games of chance played against the house, the outcome of which is determined by a random number generator, and which includes casino-type games;
    2. Type 2 gaming services – games of chance played against the house, the outcome of which is not generated randomly, but is determined by the result of an event or competition extraneous to a game of chance, and whereby the operator manages his or her own risk by managing the odds offered to the player;
    3. Type 3 gaming services – games of chance not played against the house and wherein the operator is not exposed to gaming risk, but generates revenue by taking a commission or other charge based on the stakes or the prize, and shall include player versus player games such as poker, bingo, a betting exchange and other commission-based games; and
    4. Type 4 gaming services – controlled skill games.
  • A Critical Gaming Supply Licence – a business-to-business (B2B) licence to provide or carry out a critical gaming supply that is either indispensable in determining the outcome of a game or games forming part of a gaming service, and/or is an indispensable component in the processing and/or management of essential regulatory data.
  • A Corporate Group Licence – B2B or B2C Corporate Group Licences may be issued to a corporate group that includes more than one company within its structure. This may be availed of where the entities concerned provide critical gaming supplies solely to other entities within the same group. In such instances, an additional B2B licence will not be required. However, if entities within the B2C Corporate Group Licence provide critical gaming supplies in or from Malta to entities outside of the group, a separate B2B licence would be required. The entities that can be covered by the Corporate Group Licence must be established in Malta or another EU/EEA jurisdiction.

In instances where a game may be categorised under one or more of the game types, the MGA has complete discretion to categorise the game under the specific type it believes closest reflects the nature of the game.

See 4.6 Application Requirements.

The MGA’s analysis includes examining the company’s incorporation documents; the games; the business processes related to conducting the remote games; the rules, terms, conditions and procedures of the games; the application architecture; and the system architecture of the gaming and control systems. The application is submitted through an online Licensee Relationship Management System portal, which is operated by the MGA.

A standard licence term, whether original or renewed, is ten years, whilst a Recognition Notice is valid for one year. A Recognition Notice is a notice issued by the MGA whereby an authorisation issued by another member state of the EU or EEA, or a state that is deemed by the MGA to offer safeguards largely equivalent to those offered by Maltese law, is recognised as having the same effect as an authorisation issued by the MGA for the purpose of providing a gaming service, or gaming supply in or from Malta. Licences that require government concessions, such as for the operation of land-based casinos and the island’s national lottery, would be granted for ten years or such shorter period for which the concession is valid.

Where a gaming service or a gaming supply is by its very nature temporary, consists of a singular event, or a number of game instances linked to the same event, such service or supply shall be eligible to apply for a limited duration licence.

Application requirements are almost identical for both remote and land-based operators. Prospective licensees must demonstrate that they are financially sound and capable of meeting the MGA’s requirements, and that they will comply with the applicable legislation. In this respect, all directors and persons performing key roles in the gaming company must be vetted by the MGA to ensure that they are fit and proper, based on a detailed disclosure set out in a prescribed form (Personal Declaration Form), which must be submitted through the MGA’s portal together with all supporting documentation. Direct and indirect shareholders holding more than 10% in the applicant company are subject to the same strict vetting process. 

The MGA issued a Directive on Start-Up Undertakings in which any undertaking that qualifies as a start-up would be subject to less stringent compliance obligations for a certain amount of time. The qualifications to be deemed a start-up have recently been amended as per Legal Notice 266 of 2019, wherein an undertaking must not have generated more than EUR10 million of revenue in the 36 months prior to the application. These amendments came into effect on 1 January 2020.

The timeframe for obtaining a new remote gaming licence from the MGA ranges between three and six months from the submission of a complete application. There are five application stages where the MGA will assess whether the applicant and its Key Function Holders are fit and proper to conduct gaming business in accordance with Maltese laws and regulations, whether the applicant is correctly organised and prepared to undertake its proposed business strategy, and whether the applicant satisfies all key operational and statutory requirements. The MGA will also consider whether the applicant has correctly implemented its technical infrastructure in accordance with its approved business plan and systems documentation. The five application stages are the following.

  • Fit and Proper exercise conducted on the applicant by assessing all information related to persons involved in financing and management, and on the business viability of the operation.
  • Business Planning – an in-depth financial analysis of the applicant’s business plan is conducted by the MGA.
  • Operational & Statutory Requirements – the applicant is examined on the instruments required to conduct the business, including incorporation documents, the games, the rules, terms, conditions, policies and technical documentation of the gaming and control system. Applicants must also meet the established minimum issued and paid-up share capital requirements.
  • System Review – the MGA informs the applicant of the outcome of the application. Should the application be successful, the applicant will be invited to implement the operation on to a technical environment, in preparation to go live. A 60-day time limit is allowed for this technical roll-out.
  • Compliance Review – after going live, licensees must undergo compliance audits of its operations, which must be completed by an approved Service Provider within 90 days from the MGA’s notice.

Licence application fees vary according to the licence/authorisation being applied for. A fee of EUR5,000 is payable to the MGA upon the submission of any application for a B2C or a B2B licence, for the renewal of such a licence or for a recognition notice. An application for a material supply certificate and requests for the addition of a new gaming vertical, the addition of a new delivery channel or major changes to an operator’s software and infrastructure involve a fee of EUR1,000. These specifications are found in the Gaming Licence Fees Regulations.

Any person in possession of a gaming services licence issued by the MGA must pay a licence fee of between EUR10,000 and EUR35,000, depending on the class of licence held and the annual revenue levels. The fees are established in the Gaming Licence Fees Regulations.

Gaming premises must be licensed, and any person renting out or allowing another person to use the premises as a gaming premises must ensure that the lessee is in possession of a valid approval or licence. The Gaming Premises Regulations, which were published in July 2018, are applicable in this regard. The Gaming Premises Directive, which was published by the MGA and came into force on 1 February 2019, delineates further requirements to which gaming premises must adhere. The MGA has carried out several amendments to the 2019 Gaming Premises Directive to guarantee the proper functioning of the regulatory mechanisms applicable to gaming premises and controlled gaming premises. The amendments relate to different aspects of the Directive, including the provisions pertaining to the conversion of regular players into junket players, the identification of employees, the count procedure and the "No Objection Procedure" relating to the approval of controlled gaming premises.

Gaming premises’ operators are obliged to register all players upon entry into the gaming premises. These activities must be licensed and approved by the MGA and are not subject to any prescribed limitation in their number, although their physical location is subject to several rules. Any person renting out or allowing another person to use the premises as a gambling premises must ensure that the lessee is in possession of a valid approval or licence. Gaming premises operators are expected to make the possibility of self-exclusion readily available to every person and must provide assistance and guidance to any person who wishes to exclude himself or herself. More stringent regulations apply in relation to the self-exclusion of pathological gamblers. Casino licences are issued by the MGA but would be dependent on the applicant holding a concession from the government for such operation. 

There is no limit on the total number of gaming premises for the Maltese islands. However, gaming premises are subject to several criteria obliging them to be located at a pre-set minimum distance away from schools, places of worship, and other gambling premises. There are also restrictions regulating the number of gaming devices within the licensed gaming premises to one gaming device per two square metres, and a maximum of ten gaming devices in any gaming premises. In terms of lottery ticket and sale venues, a valid permit is required to sell tickets for the national lottery. An application for this permit is to be made to the MGA by the proposed seller. There are currently approximately 240 "Maltco Lottery" points of sale across the Maltese islands.

There are no imminent legislative or regulatory changes expected in the land-based gaming sector.

See 4.3 Types of Licences.

See 4.3 Types of Licences.

There are currently no measures in place to regulate the use of affiliates. In accordance with Directive 3 of 2018 (the Gaming Authorisations and Compliance Directive), outsourcing service providers such as affiliates shall be deemed to be acting for and on behalf of the licensee. In such cases, the licensee is responsible for the affiliate’s actions in so far as the activities concerned are covered by the licence issued by the MGA.

See 6.5 Recent or Forthcoming Changes, dealing with the revisions made to the Implementing Procedures Part II, in terms of affiliates.

There are currently no measures regulating requirements that apply to the use of white-label providers. Similar to affiliates, white-label providers are deemed to be intermediaries. In accordance with Directive 3 of 2018 (the Gaming Authorisations and Compliance Directive), outsourcing service providers such as white-label providers are deemed to be acting for and on behalf of the licensee. In such cases, the licensee is responsible for the actions of the white-label providers in so far as the activities concerned are covered by a licence issued by the MGA in favour of that white-label service provider. 

In July 2020, the Financial Intelligence Analysis Unit (FIAU) and MGA published a revised version of the Implementing Procedures Part II for the Remote Gaming Sector. The changes carried out addressed amendments to the Prevention of Money Laundering and Funding of Terrorism Regulations (PMLFTR) and to the Implementing Procedures Part I, as well as reflecting the realities that FIAU and MGA officers have been encountering in the course of supervisory activities. The most salient revisions made to the Implementing Procedures Part II are the following:

  • providing further guidance on customer due diligence (CDD), such as on the verification of customers’ identity, the carrying out of ongoing monitoring, dealing with customers who are politically exposed persons (PEPs), as well as on the requirements that persons acting as money laundering reporting officers (MLROs) are expected to meet;
  • clarification on the obligations of subject persons when the customer is not willing to provide the same with the necessary information and/or documentation required as part of CDD;
  • further elaboration on risk factors that are to be taken into account by subject persons, such as on the involvement of affiliates;
  • the extension of the licensees’ own anti-money laundering and countering the funding of terrorism (AML/CFT) obligations to physical establishments used to extend licensees’ customer reach;
  • the provision of targeted guidance on corporate licensees; and
  • the inclusion of case studies based on actual cases analysed by the FIAU’s own Intelligence Analysis Section.

There are no further imminent legislative or regulatory changes expected in the online gaming sector.

There are currently no technical measures, such as IP blocking, in place to protect consumers from unlicensed operators. 

Maltese gaming legislation and regulations provide for a number of responsible gaming requirements, aimed at protecting minors and vulnerable persons from unscrupulous operators. The Responsible Gaming Foundation was set up in Malta in 2014, which has launched several projects and initiatives in this regard. A National Gambling Helpline (1777) was launched by this Foundation in 2015. Furthermore, in addition to Directive 2 of 2018 (the Player Protection Directive), the MGA imposes requirements ranging from strict advertising and marketing regimes to the possibility of self-exclusion. 

In May 2020, the MGA published a Consultation Paper to gather feedback on the "Suspicious Betting Reporting Requirements and Other Sports Integrity Matters", aimed at safeguarding the integrity of sports and sports betting. A Guidance Paper was subsequently issued in this regard, advising all MGA licensees on matters relating to sports betting integrity.

Gambling management tools adopted by the MGA are focused principally on obligations placed on operators to assist players with determining whether or not they are problem gamblers, making leaflets or other material regarding organisations that assist problem gamblers readily available to players, and ensuring that there are procedures in place to enable players to exclude themselves from playing for a definite or indefinite period of time. 

In March 2019, the MGA issued a Preliminary Market Consultation (PMC) document to request information pertaining to the possibility of implementing a Unified Self-Exclusion System to be applied to the regulated gaming industry in Malta, across gambling operators, irrespective of the channel. Although this project has not been implemented yet, the MGA is working on having this in place in the near future.

The Prevention of Money Laundering and Funding of Terrorism Regulations oblige online gaming operators to conduct high levels of customer due diligence, with the risk of steep penalties for non-compliance.

The MGA has issued a new Directive dealing with the Key Function of the Prevention of Money laundering and the Financing of Terrorism. Directive 3 of 2020, which came into force on 20 July 2020, obliges B2C licensees to have at least one of the Key Function Holders vested with the Key Function of the Prevention of Money Laundering and the Financing of Terrorism. This Key Function Holder must also be an FIAU-registered MLRO in accordance with the procedures laid down in the directive. The FIAU is the Maltese government agency responsible for the combatting of money laundering and financing of terrorism. It has published two sets of implementing procedures in terms of the PMLFTR, applicable to both land-based casinos and the remote gaming sector. These implementing procedures focus on specific areas of the PMLTFR and their application at an industry-specific level, in order to highlight those aspects of money laundering prevention that are of most relevance to the industry, and to ensure they are understood and interpreted consistently by all Maltese licensees or other licensed operators based in Malta.

See 6.5 Recent or Forthcoming Changes on the salient revisions made to the Implementing Procedures Part II, which came into effect on 2 July 2020.

As an EU member state, Malta has implemented all EU directives regulating the prevention of money laundering. Malta is part of MONEYVAL (the Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism), which was established in September 1997 by the Committee of Ministers of the Council of Europe to conduct self, and mutual, assessment exercises of the anti-money laundering measures implemented. The principal sources of Maltese law on money laundering are two statutory instruments, namely the Prevention of Money Laundering Act (Chapter 373 of the Laws of Malta) augmenting other provisions found in the Criminal Code (Chapter 9 of the Laws of Malta), and the PMLFTR (SL 373.01).

The EU’s Fourth Anti-Money Laundering Directive (“4AMLD”) classifies gambling operators as “subject persons”, which means that gaming operators are required to comply with stringent reporting and procedural obligations. The 4AMLD was transposed into Maltese law, and gaming operators became subject to risk-based AML obligations as from 1 August 2018. 

The 4AMLD takes the form of a minimum harmonisation directive, and sets out minimum standards that must be met by transposing national legislation, while affording member states the option to exceed this standard and vary in the implementation thereof. Whilst the 4AMLD lays down an obligation for B2C operators to apply customer due diligence measures for single transactions amounting to EUR2,000 or more, Malta applies this threshold on the basis of a rolling period of 180 days. 

Further to the transposition of the 4AMLD, an Anti-Money Laundering Unit was set up within the MGA, with the purpose of conducting AML/CFT supervisory assessments of licensed operators through inspections carried out both on-site and off-site. Reports of findings are subsequently forwarded to the FIAU. 

Any operator found guilty of the offence of money laundering could be exposed, on conviction, to a fine not exceeding EUR2.5 million, and its officers could be exposed to imprisonment for a period not exceeding 18 years, or to both a fine and imprisonment. The court may, inter alia, also order the forfeiture to the government of the proceeds or of property with a value that corresponds to the value of such proceeds, whether such proceeds have been received by the person found guilty or by the company. 

See 8.1 AML Legislation.

See 4.1 Regulatory Authority.

Advertising is defined as text, images, sound or any other medium transmitting information that is designed to promote, directly or indirectly, the goods, services, image or brand of a person pursuing a licensable gaming activity. For the avoidance of doubt, this also includes product placement and any emerging advertising techniques.

The key provisions can be found in the Gaming Commercial Communications Regulations, 2018, Legal Notice 247 of 2018 and SL 350.25, entitled “Requirements as to Advertising, Methods of Advertising and Directions applicable to Gambling Advertisements”. The MGA issued the Commercial Communications Guidelines as part of its mission to prioritise player protection and responsible gaming. These legal instruments lay down the basis for acceptable advertising practices in respect of gaming services. The MGA also set up a Commercial Communications Committee, the role of which is to review commercial communications issued by gaming operators in Malta, and assess any possible breaches.

The prohibitions and restrictions on advertising generally provide that advertisements must not portray, condone or encourage behaviour that is criminal or socially irresponsible or that could lead to financial, social or emotional harm, or directly or indirectly encourage antisocial or violent behaviour.

Authorised gaming operators are permitted to advertise and market their products and/or services, subject to various restrictions aimed at protecting minors and vulnerable persons. The same restrictions apply to persons providing any service to, or acting in collaboration with, licensed and authorised persons offering a licensable game. The regulations also prohibit the portrayal of gaming as socially attractive, or suggestive of enhancing personal or professional qualities, or a way of gaining control, superiority, recognition or admiration. The portrayal of gaming in the context of toughness/resilience, or as being indispensable or taking priority in life is also illegal. Furthermore, advertisements must not suggest that solitary gaming is preferable to social gaming, nor that skill can influence the outcome of a game that is purely a game of chance, and cannot provide false information about the chances of winning, or exploit cultural beliefs or traditions about gaming or luck. Operators cannot make reference to instantly available consumer credit services, or other ways of providing credit to players. 

The sending of unsolicited communications is prohibited, as is the sending of solicited communications to persons who have requested to stop receiving such communications, or who are undergoing a period of self-exclusion. 

Advertisements must clearly display the name of the relevant gaming company responsible for that advertisement, and a reference must be made in the advertisement to the fact that the company holds a valid licence issued by the MGA or another licensing authority duly recognised in Malta. Advertisements made via social media account portals held by the gaming company itself or third parties are subject to the same restrictions. 

Gaming advertisements cannot be issued or distributed in any public places or on any means of public transport in Malta, but this does not apply to advertisements displayed or broadcast within authorised gaming premises, locations frequented mainly by tourists – including airports, seaports, hotels and holiday complexes (excluding bars and restaurants) – conferences/events specifically organised by the gaming sector, the premises of operators, or newspapers or magazines, amongst others. 

The regulations also provide that responsible gaming messages are to be prominently displayed within all advertisements, and that advertisements must not be directed towards minors or vulnerable persons, must not encourage these persons to play a game, must not feature minors or appeal to these persons in any way, nor exploit the susceptibilities, aspirations, credibility, inexperience or lack of knowledge of these persons, nor present gaming as a sign of maturity or move to adulthood. 

If the MGA determines that a particular advertisement is in breach of legislation, it may order its modification, retraction or termination. The MGA may also take any administrative action it deems necessary, including the issuance of sanctions. Furthermore, where the MGA deems it necessary, it may also instruct the licensee to suspend the advertisement until it reaches a final decision. 

The Court of Magistrates in its criminal jurisdiction is competent to take cognisance of any offences committed in this respect. However, criminal proceedings cannot be undertaken without the sanction of the MGA. The prescriptive period in relation to actions in breach of advertising regulations is six years. 

See 3.7 Pending Legislation.

Advertising Recommendations by the MGA in Light of the COVID-19 Pandemic

In light of the current COVID-19 pandemic, the MGA has taken into consideration all relevant developments and is constantly proposing adequate and proportionate measures, also bearing in mind the distress the pandemic has placed upon players and operators. The MGA has reiterated the fact that operators are bound by their obligations pursuant to the Commercial Communications Regulations to ensure that all commercial communications are socially responsible, especially in light of the current situation. Any direct or indirect reference to COVID-19, or any related circumstance, would be considered to amount to a breach of this regulation.

Article 37(2) of the Gaming Authorisations and Compliance Directive (Directive 3 of 2018) requires operators licensed by the MGA to notify the Authority of any change in direct or indirect qualifying shareholding within the licensee, no later than three working days after. All the documentation required by the MGA as part of the notification process for the approval of the new qualifying shareholder must be submitted to the Authority within 30 days of the change in shareholding taking effect. Changes in shareholdings in a licensee representing less than 10% of the operator’s issued share capital, either directly or indirectly, will not require the Authority’s approval. 

If the MGA takes the view that the change in direct or indirect shareholding has the effect of prejudicing the fitness and propriety of the licensee, or otherwise hinders its suitability for a licence, it may order the licensee to reverse the transaction, reverting to the status quo ante within a timeframe established by the MGA.

Gaming licences are not transferable. However, in the case of a change of corporate control, the continuance of the licence will be subject to the MGA's vetting and approval of the new owners, and of any incoming directors and/or Key Function Holders.

Passive investors are caught by the general change of control rules outlined above. 

The enforcement measures that the MGA can adopt are as follows:

  • an order directing the authorised person to do something, or to refrain from doing something, or to otherwise correct its conduct and/or operations; 
  • a warning, directing the authorised person to do, or refrain from doing, something in the future; 
  • adding, removing or amending conditions attached to the authorisation held by the relevant authorised person;
  • in the case of a breach that does not constitute an offence under the Gaming Act, imposing an administrative penalty in terms of Article 25(3) of the Gaming Act; 
  • in the case of a breach that does constitute an offence under the Gaming Act, filing a report to the Executive Police for the commencement of criminal proceedings; and
  • suspending or cancelling a licence.

See 3.7 Pending Legislation.

Financial penalties are enforced as certain, liquid and due money claims against the licensee, through the normal enforcement procedures available under Maltese law. These generally consist of the filing of a claim by way of special summary proceedings in the Maltese courts, and the issuance of the relevant precautionary warrants against the assets of the licensee to secure the sum due pending the outcome of the judgment. Once a favourable judgment is obtained by the MGA, an executive warrant is issued against the licensee to recover the sum due, together with any relevant interest and eligible legal costs. 

In September 2018, the MGA signed an international declaration expressing concern regarding the risks posed by the blurring of clear lines of demarcation between gambling, gaming and other forms of digital entertainment, such as video games. The MGA was joined by the gambling regulators of 15 other European and American states and territories. In doing so, the regulators of these territories committed themselves to working together to analyse the characteristics of video games and social gaming more thoroughly, and called for a more constructive dialogue with the responsible representatives of the video games and social gaming industries.

In May 2019, Malta launched its "Vision for Video Game Development and Esports", and efforts are under way to attract international esports tournaments to Malta. A memorandum of understanding (MOU) was signed between the Electronic Sports League (ESL) and the government of Malta through the GamingMalta Foundation. The MOU serves as a notice of intent for both parties to develop a multi-year programme to help the development of the local esport ecosystem, the organisation of local and international events, and the sharing of expertise in the sector.

In August 2018, the MGA defined fantasy sports as a controlled skill game, requiring a licence in terms of the Gaming Authorisations Regulations (SL 583.05). The MGA defined fantasy sports as a contest offered by means of a distance communication, wherein players commit a consideration of monetary value, whether in the form of a stake, a periodic subscription or the purchase of in-game items, which provides an advantage to the player, to compete against other players for the possibility to win a prize of money or money’s worth. The outcome of a fantasy sports contest shall be determined by the accumulation of statistical results of the performance of a number of individuals competing in actual sporting events. The winning outcome must be determined predominantly through the skill or knowledge of the player. The onus of proving the existence of all these factors rests entirely with the applicant.

A "game of skill", or "skill game", is defined as an activity in which the outcome is determined by the use of skill alone or predominantly by the use of skill, but excludes a sports event, unless otherwise established by Maltese law. The MGA has the sole discretion to determine whether an activity is classified as a game of chance, a game of chance and skill or otherwise, and specific rulings may be obtained from the MGA upon submission of a request outlining the proposed game in detail. In determining this, the MGA considers factors such as the presence of random draws and their effect on the outcome, whether the game is played for money or prizes with a monetary value, and whether participation in a game involves any form of commitment having a monetary value.

Skill games generally do not require a licence, unless they involve a stake to enable participation or offer the possibility of winning a prize of money or money’s worth, in which case they would constitute a "controlled skill game" and require a licence.

The burden of proving that an activity is a skill game (and therefore not licensable) rests on the party operating or promoting such activity. These are outlined in the Sixth Schedule of the Gaming Authorisations Regulations. To date, the MGA has only issued one ruling whereby "fantasy sports" was pronounced to be a controlled skill game. It is possible to obtain a ruling from the MGA in relation to a proposed game, based on the specific operational model.

The MGA launched a Guidance Note on the use of Innovative Technology Arrangements (ITAs) and the acceptance of Virtual Financial Assets (VFAs) and Virtual Tokens through the implementation of a Sandbox Environment with effect from 1 January 2019. The regulatory requirements envisaged therein are subject to change from time to time, as may be rendered necessary by technological and regulatory developments. The Sandbox Environment was set out with two phases. 

  • The first phase established the possibility for authorised persons to be allowed to accept VFAs as a means of payment. This was launched in October 2018 and became effective on 1 January 2019.
  • The second phase was introduced in September 2019, wherein the MGA accepts applications for the use of ITAs including distributed ledger technology (DLT) platforms and smart contracts. ITAs shall be required to be audited by auditors registered with the Malta Digital Innovation Authority (MDIA) in terms of the Innovative Technology Arrangements and Services (ITAS) Act (Chapter 592 of the Laws of Malta), and shall only be accepted by the MGA if the audit report consists of a positive opinion and the MGA is satisfied that the regulatory requirements shall be adhered to by the authorised person.

In June 2020, the MGA also made some amendments to the Sandbox Regulatory Framework. Following these amendments, the authorised person and/or prospective authorised person shall be required to submit a legal opinion signed by a registered VFA agent, regarding the licensability or otherwise of the services in terms of the Virtual Financial Assets Act (Chapter 590 of the Laws of Malta), that shall be undertaken by the authorised person and/or any service provider engaged by the authorised person within the sandbox environment. Furthermore, the amendments make it clear that authorised persons and/or outsourcing service providers that are carrying out a licensable activity in terms of the Virtual Financial Assets Act require a licence from the MFSA.

Additionally, the requirements relating to the verification of control that a player exercises over his or her wallet have been brought in line with applicable AML/CFT obligations; and the requirements applicable to the audit of innovative technology arrangements by auditors registered with the MDIA have been clarified.

The MGA emphasised the importance that the participation in the Sandbox Regulatory Framework is conditional on the applicant. One must hold the relevant licence issued by the MGA, without prejudice to any other regulatory requirements stemming from other applicable legislation, including the Virtual Financial Assets Act and the regulations. The MGA has extended the duration of the Sandbox Regulatory Framework until 31 December 2021. The MGA noted that if it deems it appropriate, the duration of the sandbox may be extended further for a specified period, in whole or in part.

There has been little take-up of this framework by operators, and at the time of writing there has been no official information released by the MGA in this regard.

A comprehensive reform took place in August 2018, and no additional legal reform initiatives are expected. 

Any gaming service subject to the requirement of a licence, carried out from Malta or to any person in Malta, is subject to a gaming tax calculated at the rate of 5% on the gross gaming revenue (GGR) generated from said gaming services during the relevant tax period. This tax is levied on the gaming revenue, as defined in the Gaming Tax Regulations, 2018, Legal Notice 248 of 2018, generated by operators from end customers located in Malta.

There is also a gaming levy imposed on gaming devices, calculated on the aggregate gaming revenue generated during the relevant tax period. The rates of this gaming levy depend on the type of gaming service offered. The gaming levy imposed in relation to gaming devices deployed within gaming premises in the provision of Type 1 and/or Type 2 gaming services is 30%, while that imposed on gaming devices deployed within gaming premises in the provision of Type 3 and/or Type 4 gaming services is 12.5%. The levy on gaming devices deployed within controlled gaming premises in the provision of either Type 1, Type 2, Type 3 and/or Type 4 gaming services is 15%.

Operators are obliged to pay a compliance contribution to the MGA, as well as other applicable licence fees. The compliance contribution is determined by the gaming revenue generated by the licensee under its MGA licence, and is calculated in accordance with the Gaming Licence Fees Regulation based on the type of gaming service or critical gaming supply offered. A Maltese company holding licences in several jurisdictions would not account for the compliance contribution imposed by the MGA for those activities conducted under its non-Malta licences. Player winnings are generally exempt from taxation in Malta, provided that the gaming activities are not undertaken with such frequency by the player as to be deemed to constitute a trade, business, profession or vocation.

Maltese resident and domiciled companies are subject to tax on their worldwide income, minus permitted deductions, at the standard corporate tax rate of 35%. However, based on Malta’s full-imputation system, upon the receipt of a dividend, shareholders of a Maltese company may claim a refund of all or part of the tax paid in Malta at the level of the company, depending on the type and source of the income from which such dividend was paid. Specific tax advice should be obtained in each case.

Value Added Tax (VAT) is applied at the standard rate of 18% on every taxable supply of goods, services or importation, with lower rates applicable to certain sectors.

Two sets of guidelines have been published by the Maltese government in relation to the previous gambling VAT exemption. These guidelines became effective on 1 January 2018 and provide a specific list of exemptions applicable to particular gaming activities. Therefore, in contrast to the previous regime (where a blanket exemption was applicable to all gaming activities), VAT will apply under the current framework, unless the particular gaming activity is specifically exempt. The VAT exemptions applicable to the respective gaming activities are exemptions without credit. 

GVZH Advocates

192, Old Bakery Street
Valletta VLT1455
Malta

+356 2122 8888

gaming@gvzh.mt www.gvzh.mt
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Law and Practice in Malta

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GVZH Advocates is one of Malta’s leading legal practices actively involved in e-commerce and remote gaming law, offering a full spectrum of services, including company registration, preparation and co-ordination of all aspects of the application process with the Malta Gaming Authority (MGA) and ongoing support for operators establishing their operations in Malta. GVZH Advocates is a modern and sophisticated legal practice based in Valletta, Malta, composed of top-tier professionals, firmly rooted in decades of experience in the Maltese legal landscape. Built on the values of acumen, integrity and clarity, the firm is dedicated to providing the highest levels of customer satisfaction, making sure that legal solutions are not only soundly rooted and rigorously tested, but also meticulously implemented. The firm understands that today's business environment requires legal advisers who have both skills and expertise geared towards effectively addressing specific and technical issues in the context of complex projects, transactions and disputes.