When some participants gamble in online casinos (operating under the 'sublicense' of licensees established in Curaçao), the participants claim that the prize money won has not been paid out by the casinos. The claims of the participants have been transferred to a foundation (by assignment) whose purpose is to assist participants in collecting the prize money they have won from participating in games of online casinos. In a recent ruling of the Court, the central question was whether the licensee (and therefore not only the online casino) can be held liable for payment of the prize money. In this case, the prize money was claimed by the foundation from (1) the licensee of games of chance in Curaçao, (2) the director of the licensee and (3) the online casino where the participants played.
In its judgment of 8 November 2021, the Court ruled that it is not possible to recover the claim from the licensee. The claim against the online casino was granted by the Court. For the foundation, the game was not over yet and the foundation appealed against the judgment of the court of first instance. The Court clearly takes a different position than the Court on the liability of the licensee, as follows from the judgment of the Court of 14 March 2023.
The law stipulates that the payout of games of chance is guaranteed by the licensee, according to the Court. The Court therefore considers that the licensee is also liable. Article 17 of the Offshore Gambling Ordinance contains conditions to protect players who participate in games of chance when operating the license. According to the Court, the licensee must protect the players who participate in games of chance and in that sense the licensee has an important duty of care. By not guaranteeing that the online casinos adhere to the license conditions and by not responding to requests from players, the licensee does not comply with this duty of care and commits an unlawful act against the player. Subsequently, the licensee also commits an unlawful act by profiting from the breach of contract by the contractual partners. The online casino is seen as an assistant to the licensee.
The claim against the permit holders is granted. The claim against the director of the permit holder is dismissed because she cannot be held personally seriously enough to blame for the actions of the company. The Court hereby annuls the judgment of the Court of First Instance.
It is clear that the ruling has changed with articles 6:76 BW in conjunction with 6:162 BW. Liability due to the commission of an unlawful act is central to this ruling, which is based on the assumption that the online casino can be regarded as an auxiliary person of the licensee. The legal position of the licensees in relation to that of the participants has taken a completely different turn. However, it is not certain here that the licensee is also held liable by definition in the event that the participant has not received his prize money. After all, this is not an absolute guarantee for the protection of participants. What is now expected of the licensees in the context of taking the necessary measures has not yet been sufficiently highlighted in the case law. Of course, there is already something to be said about this. But we will come back to that in our next article.
The Supreme Court's ruling can be found at the following link:
https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:OGHACMB:2023:31
The location of the judgment of the Court of First Instance is:
https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:OGEAC:2021:214