Yesterday’s Telegraph

A year and a half ago I spent a memorable evening in the Pheasant in Lambourn where Charlie Brooks signed me a copy of his then recently-released debut novel, Citizen. I’ve been waiting for his second for a while, and look forward to its appearance.

My expectations of a release before Christmas were heightened when someone contacted me yesterday morning to ask whether I’d seen Charlie’s newest fictional release, but unfortunately that was a poke at his Telegraph column. On going to seek it out, I realised that my correspondent had a point: the piece about what Charlie describes as the Council of the European Union’s ‘rare moment of clarity’ is seriously befuddled.

The thrust of the article is about how easy it is to stop offshore gambling, and two paragraphs in the middle read as follows:

…it is highly likely that this government will want to put a stop to its citizens playing poker, bingo, or betting on two flies crawling up a  wall with online gaming providers who aren’t licensed in the UK; and more importantly, paying taxes here, rather than Malta or Gibraltar.

So […] the full-time whistle is about to be blown on offshore gaming in this country. Is that enforceable? Oh yes. The Wire Act in the USA, which prevents the transfer of funds across state borders, is ample proof of that. However pioneering and mercurial betting executives may be, not many of them fancy a stretch behind bars.

If the second paragraph were based on sports betting alone, you could just about cobble together a defence of it by saying that assertions that the black market in sports betting in the United States is the biggest in the world are no more than that (assertions). Personally, I think it would be an extremely weak defence, because there is, I think, pretty wide acceptance of them. But it is true that they can’t be proved, by definition: we can’t know how big the black market is because it’s a black market, so it’s just about possible, at a stretch, to pretend that actually, it doesn’t exist.

But the proposition is wider than that: it is a belief (shared, I suspect, by some among Racing’s leadership) that legislation can be introduced to stop people from betting on poker and anything that the Government decides it doesn’t want people to bet on, as it has been in the United States. If only life were this simple, then we’d have solved the issue at hand many, many years ago.

The reality, sadly, is rather different.

The Department of Justice (as they told me to my face when I went to visit them – off my own bat, you’ll understand – in June) may think categorically that it is illegal under the Wire Act to take poker bets; but most people with a passing knowledge of online poker will know that the two biggest players in the world, PokerStars and Full Tilt Poker, are in the pre-eminent position that they hold precisely because they take bets from the United States.

I should perhaps stress that they have copious legal advice that they are within their rights to do so, and that the principals of one of them actually live in the US, so little are they (pace Charlie) in fear of arrest. But I’m not here debating the legal position: I’m pointing  out nothing more than that the US government position is that both companies are outlawed by the Wire Act; and that the corollary of this is that they run the two biggest online poker sites in the world. One of them, I heard recently, has an EBITDA, in euros, of…. wait for it… 1.4 BILLION.

So whatever route we go down in bringing about further legislation in Europe, can we please not take the Wire Act as a model? Indeed, can we not take any model predicated on prohibition and limitation as a model, since, as I mentioned Stephane Courbit pointing out in my post yesterday, this is a recipe for fraud.  Personally, I agree with Courbit, and doubt very much that you can stop someone, on the internet, accessing something you don’t want them to access (and were it possible, I’d suggest that blocking access to child pornography would be a better place to start); and I believe, as readers of this blog will know I have said many times before, in the need for the market to decide on product choice, and governments to regulate the standard of its production and in-built protections (as is true of every other industry I can think of).

But if I’m wrong, and some means of preventing people making their own consumer choice online is devised in the future, it would help to begin by accepting that no prohibitive or restrictive legislation that is currently in place anywhere in the world does what its governments want or claim.