Moving beyond the skill and chance debate: A comparative international regulatory framework analysis for online gambling laws in India

Abstract

Although the debate surrounding gaming and gambling has been prevalent in the society since a long time, the introduction of the online aspect to this field has led to unique scenarios of convergence between the two fields. Many games have been adopting legally permissible level of gambling-like elements for increased revenue production and many gambling services are introducing game-like features to their services to escape prohibition. The current literary position on the skill and chance metric is that it is a spectrum rather than two contrary concepts. With the introduction of the online sphere, most services are toeing the line between skill and chance where it is difficult to say concretely where a particular service would fall. The traditional mechanism of regulation based on the idea of “skill” and “chance” is falling short of being able to efficiently govern these converging services. Courts have adopted a highly subjective mechanism of differentiating between the two on a case-to-case basis which is becoming deficient in face of the online convergence of the two. This paper aims to highlight the unique challenges presented by this online convergence and gaming and gambling in general and the reasons why traditional forms of regulation are insufficient to address these issues. This is undertaken by means of doctrinal and comparative analysis of international positions based upon the different types of regulation prevalent in different jurisdictions specifically, strong control with state wise regulations (predominantly India, USA), prohibitionist regime (South Korea, most of the Middle East), state monopoly (Norway, Finland) and a liberal regime (Malta, Gibraltar) with the aim to draw out the inconsistencies faced by most jurisdictions as well as what can be a possible best practice of regulation of this area.