Blocking Order for Unauthorized Gambling Offers on the Internet Against Access Brokers Unlawful

Press release from the Higher Administrative Court of Rhineland-Palatinate from February 1st, 2023

There is no legal basis for the blocking of the internet pages of a foreign gaming provider ordered by the joint gaming authority of the federal states in relation to an access provider. This was decided by the Rhineland-Palatinate Higher Administrative Court in Koblenz in an urgent procedure.

The joint gaming authority of the federal states in Halle (Saale) is responsible for combating illegal gambling on the Internet and advertising for it across the federal states. In a decision dated October 13, 2022, the authority ordered the applicant – a provider of telecommunications services based in Rhineland-Palatinate -, among other things, to use certain websites (domains) with gambling offers from two lottery companies based in the Republic of Malta within the scope of their technical possibilities as to block access brokers so that access to the Internet provided by the applicant in Germany is no longer possible. The applicant brought an action against this and at the same time sought provisional legal protection. The administrative court of Koblenz rejected their urgent application. In response to the complaints filed against this by the applicant and the gambling providers involved, the Higher Administrative Court amended the decision of the Administrative Court and ordered the suspensive effect of the action against the contested blocking order.

The blocking order made against the applicant is obviously illegal. It cannot be based on the authorization basis in Section 9 Paragraph 1 Sentence 3 No. 5 of the State Treaty on Gaming 2021 – GlüStV 2021 – which came into force on July 1, 2021. According to this provision, the Respondent as a gambling supervisor can take measures to block these offers against responsible service providers, in particular access brokers and registrars, within the meaning of §§ 8 to 10 of the Telemedia Act – TMG – if measures are taken against an organizer or broker of this game of chance proved to be unfeasible or unpromising. However, these conditions are not met. The applicant is already not a responsible service provider within the meaning of §§ 8 to 10 TMG so there is no need to decide whether the other requirements of the regulation for intervention against the applicant are met. The court does not share the Respondent’s view that the responsibility of the service providers according to Section 9 (1) sentence 3 no. 5 GlüStV 2021 is determined by this standard itself, without referring to responsibility under the Telemedia Act. The wording of the provision does not allow for this interpretation. Such an understanding of the norm is also not supported by the history of its origin or the sense and purpose of the regulation. According to the understanding of § 9 para. 1 sentence 3 no. 5 GlüStV 2021 not a responsible service provider within the meaning of §§ 8 to 10 TMG. According to the provision in § 8 para. 1 sentence 1 TMG, which is relevant for the applicant as an access broker, service providers are not responsible for third-party information to which they provide access for use, provided they do not initiate the transmission (No. 1), the addressee of the information transmitted (No. 2) and did not select or change the information transmitted (No. 3). The applicant fulfills these disclaimer requirements. They neither arrange for the transmission of the gambling content nor select it or the addressee. The liability privilege does not apply according to § 8 paragraph 1 sentence 3 TMG if the service provider intentionally cooperates with a user of its service to commit illegal acts. However, such a case is obviously excluded here.

The challenged blocking order could also not be based on the catch-all authorization of Section 9 (1) sentence 2 GlüStV 2021, according to which the authority responsible for all states or in the respective state could issue the necessary orders in individual cases. An application of this general catch-all authorization is in this respect opposed to the special legal special regulation of Section 9 (1) sentence 3 no. 5 GlüStV 2021, which contains a conclusive regulation for taking measures to block illegal gambling offers against service providers.

Resolution of January 31, 2023, reference number: 6 B 11175/22.OVG

SOURCE: Rhineland-Palatinate Higher Administrative Court.