1 Introduction
As the online transaction market expands due to the rapid development of information and communication technology and many countries relax gambling regulations during the COVID-19 period, the offline gambling industry is rapidly transitioning to the online space, and the online gambling market is growing rapidly.
The global online gambling market size is expected to reach US$100.9 billion in 2024 and show an annual growth rate of 6.2%, reaching US$136.3 billion in 2029.[
69] In Europe, it is estimated that online channels already account for about a quarter of all gambling, and in some European countries such as Sweden and Denmark, the proportion of online channels reaches up to 60%. [
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Most countries use the gambling industry as a means of raising tax revenue to provide public goods such as education, pensions, and infrastructure. Online gambling policies vary by country, ranging from the UK's licensing system, which licenses specific gambling sectors such as sports betting and lotteries, to each country's cultural differences, public awareness, and market economic conditions. It is operated exclusively by state-owned enterprises, such as Finland, South Korea, some American states, and Asian countries where gambling is essentially banned.[
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Due to the nature of the online environment, offshore gambling sites are easy to access across borders, and time and space constraints are difficult, resulting in limitations in the exercise of jurisdiction centered on the territory, resulting in a blind spot for online gambling regulations. Taking advantage of this, many online gambling sites are increasingly active in gray or illegal markets due to regulatory limitations and difficulties in operating effective regulatory frameworks in countries that have banned gambling or have limited access to various gambling portal sites in the form of large platforms with servers in open and loose markets. This study aims to compare and analyze the management and supervision of the gambling industry in the United States and Canada, where the gambling industry is large and has various state-specific regulatory and regulatory policies.[
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10] In addition, by looking at online gambling disputes between the WTO and EU member states and seeking ways to use information and communication technology for an effective policy approach considering the hyperconnected characteristics of the digital economy, we want to find a way to guarantee jurisdiction and offshore regulation between trading countries based on the principle of reciprocity. In particular, we would like to present a reasonable policy plan from a convergent perspective so that the conflicting elements of online gambling service freedom and regulation can be coordinated within the acceptable range by considering the change of the era to a digital-based society and regulatory measures using it, not limited to offline-centered formal legal analysis.
2 Backgroud
2.1 Online Platform-Based Gambling Market Formation
With the transformation into a hyperconnected society, online gambling services are becoming more global and portal and platformed beyond the national scope, blurring the boundaries between legal and illegal. In particular, Asian countries with strong regulations on the online gambling industry, including South Korea, experienced a crisis of existence of legal industries during the COVID-19 period, while markets or illegal markets open to the private sector are rapidly expanding as they actively utilize global services and evolve into non-face-to-face customized services with advances in ICT technology.[
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45] In recent years, the online gambling market classification can be divided into three major markets: a white market led by a company licensed to operate within its jurisdiction, a gray market that also serves consumers in countries that have obtained a business license in a specific country but are not licensed, and finally a black market led by an unlicensed operator in its jurisdiction. [
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66] The fact that most offshore gambling sites are based in "tax haven countries" allows for an unfair competitive advantage over domestic operators, especially with this fiscal avoidance, which allows them to operate at a lower cost and provides customers with better service, including higher probabilities and more features and a variety of gaming options.[
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In the past, in the case of physical space-oriented white markets, it was common to take place within the institutional sphere in accordance with national policies within the jurisdiction of the country, but the rapid spread of Internet and smartphone use has led to the rapid growth of the transnational gray market, and the characteristic of gray market operators is that they have limited licenses in certain jurisdictions, but provide transnational services through online platform-based brokers. China, for example, is legally the only player offering sports betting is the national sports lottery, and all online betting is banned, but offshore betting operators licensed in the Philippines or other countries participate in the huge market, earning the equivalent of billions of dollars a year, and this is mainly done in Asia. [
47] The form of business in Asia's grey or black market is pyramid-shaped, with customers under the pyramid either directly or with local brokers via phone, text or app. [
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46] Local brokers raise the pyramid level to bet on national brokers and ultimately on Asia's largest bookmakers, and brokers located at each stage receive a betting fee. Illegal bets are often made on credit transactions, which are allocated by a master agent and loaned to the pyramid's lower structure. Large professional betting federations are syndicated in pyramid-style, and the volume and liquidity of Asian markets are generally so great that major betting operators in Europe and around the world are hedging with Asian market bookmakers. [
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2.2 Multinational Characteristics and Organizational Operations
Gambling regulations by country inevitably differ depending on the cultural differences, public consciousness, competition situation, and market environment of each country. However, as the demand is not properly met in the legal market, gray market or black market operators have an opportunity to expand new markets compared to white market operators. In particular, offshore gambling has several advantages, such as high price competitiveness and the ability to provide services without time or space constraints, as it does not feel a burden from taxes due to substantial regulations due to blind spots of jurisdiction.
Gray or black market operators are taking advantage of the limitations of online regulation to not comply with local laws and regulations, resulting in high product competitiveness and broadening various betting types and market ranges. In particular, their betting products can be promoted through online advertising, sports sponsorship, online and on-site affiliate marketing, and agency networks, while white market operators are prohibited or extremely restricted from related promotional activities under regulations in their countries.[
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As an such as Hong Kong and Macau raise the amount to operate illegal gambling sites, use Taiwan's ICT infrastructure to obtain a license in the Philippines, and hire support personnel as operators. In other words, the transnational nature of providing illegal online gambling services to customers across Asia demonstrates the limitations of national jurisdiction, which must exercise strict controls and regulations within their own institutional sphere.[
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3 Research Framework
In general, the speculative industry is a representative regulatory industry, and Asian countries, including South Korea, the United States, and some Northern Europe have regulatory policies that are allowed to a limited extent to limit online speculative behavior or to reduce state-led physical accessibility.[
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7] On the other hand, some EU countries, such as the UK, Italy, and Germany, are increasing their industrial competitiveness by eliminating regulations on online and offline transactions and opening up markets to induce free competition in the private sector, and do not restrict trade regulations with trading countries.[
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Research related to the online gambling industry began with the development of Internet technology, and due to the nature of the Internet without border constraints, the existence of regulatory limitations within national jurisdiction causes blind spots in national administration, which spreads social side effects, and is being studied from various perspectives, including psychological behavioral studies for user protection and addiction prevention, as well as regulatory approaches using digital technology.[
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70] However, in the case of the online gambling industry, unlike other online industries, cultural differences between countries, regulatory methods for the gambling industry, and market conditions are different, so there is a limit to finding a uniform approach direction that allows for mutual acceptance and regulation between countries.[
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It is impossible to control the globally connected Internet no matter how strong control it exerts in some areas of the network, and even in controlled areas, information can be exchanged through technical bypass methods. In other words, data is distributed without any restrictions as long as communication protocols are followed in the Internet environment, and unlike these online characteristics, legal regulations cannot overcome regional limitations based on territorial grounds, which conflicts with the normative system of cyberspace. Therefore, the jurisdiction of online gambling in cyberspace goes beyond the limits of the principles of territorialism based on physical state territories, and the origin and destination of the gambling transaction as a joint action site, and if this has a significant impact in the country, it is necessary to redefine and consider whether to expand the scope of national jurisdiction so that the country's online gambling policy can be effectively applied.
In this study, 10 countries were selected and investigated, including the UK, which pursues a free competitive market, and Germany and Italy, which have active gambling markets within the EU, which aims for a single economic community. On the other hand, 10 major Asian countries with relatively limited gambling markets were also surveyed. In addition, unlike the federal government, nine state governments and Canada in the United States, which have various gambling policies for each local government, were selected to survey the operation status of each gambling industry, including online gambling in a total of 30 European, Asian and North American countries (including the U.S. state government).
Based on the results of the survey, we tried to compare and analyze online gambling regulations, find controversial elements of globalization and national sovereignty to solve the problem of online gambling in different regulatory approaches from country to country, and find international implications for how the national regulatory system becomes a source of industrial legitimacy.
The online market is challenging the country's law enforcement jurisdiction as it forms a global economic community and spreads cross-border online platform businesses, and online gambling is also experiencing international trade disputes in the international trade sector due to regulatory differences between countries. Therefore, representative online gambling disputes between the World Trade Organization (WTO) and the European Community (EU) member states were examined, and legal theories applied in the conflict cases were reinterpreted to derive effective policy implications for national jurisdiction and offshore regulation to suit the digital economic environment.
Finally, based on the application of the legal theory derived from the dispute case and the comparative and analysis of each country, the online gambling policy situation by country was classified into three types of markets, six basic items that must be mutually observed according to the market status between trading countries, and an online gambling governance model is presented so that they can be applied according to the market type between trading countries.
4 The current situation of the gambling industry by country and cases of dispute
4.1 Gambling Industry Operation in Representative Countries
Looking at the operational status of the gambling industry by country, it can be classified into types such as casinos, horse racing, game consoles, sports betting, and lottery, as shown in Table-1.
Monopoly or competitive markets can be classified into three main types, depending on the licensing and licensing method by type and whether the operating entity is led by the state or the private sector. [
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First, in the case of a state monopoly, it refers to a structure in which all gambling industries are monopolized by the state or state-owned enterprises, including Finland, the Netherlands, Norway, Hong Kong, and Korea, and the gambling industry can be viewed as a regulated or controlled market under state control. Second, the private monopoly type is a structure in which all gambling industries are operated by granting exclusive status to the private sector, and Malaysia and Taiwan can be classified as representative, and can be viewed as regulated or limited markets similar to the state monopoly type.
Lastly, in the case of the private competition type, it refers to a structure in which market competition is permitted by giving a license or permission to operate all gambling industries by the private sector. Among the private competition countries, Italy and Germany are representative, and the lottery sector is monopolized by most countries and the rest of the types of gambling industries are allowed to compete in the private sector, including the UK, Spain, Vietnam, and the United States. [
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17] In addition, the casino sector among private competitive countries is a private competitive structure, but all other types of gambling industries are monopolized by the state, and France, Singapore, Australia, Japan, Macau, and the Philippines can be classified as representative countries.[
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Laws to manage and supervise the gambling industry by country are enacted in most countries, and there are individual laws that supervise according to the gambling industry classification or integrated laws that encompass the entire gambling industry. However, some Southeast Asian countries are unlikely to have smooth state supervision due to the lack of relevant laws, and there are institutional risk factors that make it difficult to control illegal gambling within the jurisdiction of the state. [
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4.2 Status of permitting online gambling in representative countries
As shown in Table-2 below, online gambling policies allow online services in many European countries except France, while most Asian countries, Australia, and some states in the United States, except the Philippines, do not allow online services for online casinos. However, horse racing, sports betting, and lottery, which are exclusively supervised by most countries, are allowed in most countries except for some Asian countries. [
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Some EU countries, including France, are facing the limitations of effective national regulation and supervision of online gambling due to their online nature without border restrictions, as well as many states in the United States, which have traditionally taken regulatory-oriented policies throughout the COVID-19 period and through rapid developments in information and communication technology. [
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4.3 Major Conflict Cases between Trading Countries
4.3.1 WTO Dispute Case (Antigua and Barbuda vs. United States) [49]
There are very few WTO disputes involving trade agreements on gambling services, but the Antigua and Barbuda vs. United States case has raised issues regarding the interpretations of service concessions, restrictions on market access, and application of general exceptions. The panel and appellate body's judgment on these issues have provided useful criteria for the scope of service concessions to date.
Antigua is a British commonwealth country in the Caribbean, where tourism and the Internet server industry serving the US market are the country's main sources of income. It has developed into a major industry for the country by attracting Internet service providers for US consumers. Many of the service providers offer a wide range of services, including online gambling games and gambling services, but the US state and federal governments have enacted the UIGEA, a federal law that restricts online gambling.[
65] In response, Antigua requested bilateral consultations in 2003, claiming that the US violated the concession to cross-border supply of Internet gambling services.
The main issues was whether the provision of Internet gambling services was included in the US service trade concession table, whether the US included Internet gambling industry services for the type of cross-border supply service, and whether the US restrictions were necessary to protect public morality or maintain public order according to Article 20 of the General Agreement on Tariffs and Trade (GATT).
The WTO Appellate Body acknowledged in April 2005 that Antigua's complaint that the US’ ban on remote gambling violates the latter's obligations under the WTO Service Agreement. Regarding the general exception to protecting public morality or maintaining public order,[
50] the Appellate Body ruled that many of the US measures met the exception requirements; however, the issue of discrimination between domestic and foreign operators regarding online services of US interstate horse racing was not resolved.
4.3.2 Examples of Disputes between Single Market Economies (EU)
Online gambling regulations in countries within the European Union have various regulatory frameworks for each country, and the European Court of Justice (CJEU) has ruled on approximately 35 cases to comply with the Treatment on the Functioning of the European Union (TFEU) since 1994. Online gambling regulatory systems in all countries within the European Union must comply with the TFEU, and in a series of rulings, the Court of Justice of the European Union (CJEU) presented general guidelines on the fundamental freedoms of online gambling services in the markets of member countries, allowing the courts of those countries to assess situations in which restrictive national gambling laws are justified on grounds related to general interests.
The ruling Italy vs. Placanica [
51], which set a reference point for freedom of service provision in Article 56 of the TFEU, the main principle of trade trade within the European Union, was a combination of three cases: C-338/04 Placanica case, C-359/04 Palazzise case, and C-360/04 Sorrichio case, in which an Italian court asked the European Court of Justice (CJEU) for a pre-emptive ruling. The defendants were local operators of British bookmaker Stanley International Betting Ltd.'s (hereinafter referred to as 'Stanley') in Italy and provided gambling services online, but they were criminally charged with providing gambling services without permission from relevant ministries and approval from the police, and the European Court of Justice (CJEU) ruled that the Italian government at the time was greatly expanding its gambling business in the country for the purpose of tax revenue, while non-Italian companies took a dual attitude of strictly prohibiting sports betting activities. However, it stated that the discretionary actions of member states may be recognized to protect the public interest purposes, but that the requirements of suitability for purpose, proportionality to necessity, and non-discrimination must be met as a discretionary measure.[
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The European Court of Justice (CJEU) has confirmed that the provision and use of cross-border gambling services fall under the economic activities that fall within the TFEU's basic freedom range. In particular, Article 56 of the TFEU prohibits restrictions on the freedom to provide services to recipients in other EU countries. Nevertheless, there is no obligation to mutually recognize permits or licenses for the provision of gambling services granted by certain countries in EU countries, and the Court of Justice (CJEU) has recognized the jurisdiction of EU countries to restrict the cross-border supply of certain gambling services only when necessary to protect public interest purposes, such as protecting minors, fighting gambling addiction, and preventing crime and fraud.
Based on the above reasons, many EU countries have protested that restricting online gambling services provided across borders is a legitimate exercise of jurisdiction by the state, but the European Court of Justice (CJEU) stipulated that to secure the legitimacy of the measure, the existence of issues related to suitability, proportionality and necessity, especially the purpose of the public interest, and the consistency of the regulatory system must be demonstrated. In particular, EU countries must demonstrate that their chosen public interest goals are consistently and systematically pursued as a prerequisite for meeting the reasons for recognition if they take action against the freedom to provide cross-border services.
5 Automatic detection and regulagion of gambling sites using ICT
ICT has changed how consumers participate in and access newly launched gambling services, as well as traditional gambling and games with long histories.[
29] Through social media and online technologies, socially oriented games based on young people's communication habits are easily accessible, and advertising is customized using individual media or text messages.[
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There are three main ways to block common websites.[
30] First, Internet Protocol (IP) address blocking is quite effective, but most websites usually have a high blocking risk because hosting services are provided using a unified virtual IP.[
22] Second, Domain Name System (DNS) blocking is the cheapest and most convenient method, so it is commonly used. Finally, the Uniform Resource Locator (URL) blocking method is the most accurate identification and blocking method, but the use of Deep Packet Inspection (DPI) technology has the disadvantage that encrypted connections are expensive and difficult to use. In particular, there is a risk that Internet Service Providers (ISPs) may monitor communication data, raising personal information protection issues .[
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Recently, research on the automatic detection of online gambling sites has been studied using the same approach as methods for detecting malicious websites, utilizing various pattern analysis models such as machine learning or data mining. [
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34] In particular, these sites send spam advertising text messages to consumers, attaching a site connection link to induce easy access.[
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Most modern web browsers use blacklists of proven phishing URLs to prevent phishing attacks. Researchers in cybersecurity have recently utilized machine learning models to automatically detect websites or minimize social side effects in cyberspace through detection methods using open data, such as spam comments or user reviews, to prevent online illegal activities through social media such as YouTube.[
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In general, cross-border online gambling services are provided through licensed or unauthorized online gambling sites in low-regulated and low-tax countries. In consumer countries, sites that are not licensed for online gambling regulation in their own country are blacklisted, blocked, and redirected to a landing page provided by regulatory agencies when users access them to guide them about the risks of illegal online gambling.[
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Therefore, in the case of trading between countries, it is necessary to establish an information-sharing system that can share and block illegal gambling information in real time so that their online gambling policies can be effective.
6 Analysis of the scope of jurisdiction and the theory of application of offshore regulations in the online gambling industry
In general, the gambling industry is a representative regulatory industry that minimizes physical access through state-led access control policies or restrictions on online gambling as well as offline in Asian countries, including South Korea, the United States, and some Northern European countries. In contrast, some EU countries are increasing their gambling industry competitiveness by eliminating regulations on online and offline transactions and opening up markets to induce free competition in the private sector, and do not regulate cross-border transactions. [
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Jurisdiction is a concept developed around the scope of its exercise in relation to the concept of sovereignty and national territory under international law. It can be categorized into legislative jurisdiction, judicial jurisdiction, and executive jurisdiction. Even if legislative jurisdiction is recognized, it is generally accepted that a law is not authorized to be enforced outside its territory—that is, outside of permissible norms based on customary international law or agreements. In the case of executive jurisdiction, it is generally believed that territorial principle is applied.
In the Alcoa case, the US federal courts stated that if the agent is a person outside of US sovereignty, and even if their actions were performed in a foreign country, if, under the "effect doctrine" the agent impacts the country, the law of the country can be applied.[
52] Subsequently, through the Timberlane case, the US federal courts revised the effect doctrine established in the Aloca case, and the "Interest Balancing Theory" was established to recognize the application of domestic law only when the domestic interests of applying domestic law are greater than those of foreign interests. [
53] Additionally, it expands the application of the US law to agents or actions outside the US under certain requirements, such as the "Clarifying Lawful Overseas Use of Data Act in 2018.[
54] This implies that the US law may also be applied to Internet activities with headquarters overseas and targeting citizens in the US territory.
The theory of offshore application of the CJEU does not rely on the effect doctrine from the Dyestuffs case. Rather, it is based on the "Economic Single Unit Doctrine," and is expanded by applying the concept of place to where the restriction of competition occurs. Just as the place of crime includes the place where the crime occurs, it was found that the behavior of joint actions that restrict competition included not only the place where the agreement was made but also the place where the agreement was implemented.[
55] In particular, the 2014 Google Spain ruling on an individual's right to be forgotten suggested that regulatory standards should be accepted as norms through international cooperation organizations with international consensus rather than established at the individual level to ensure the effectiveness of offshore regulatory enforcement for companies providing global Internet services when applying regulations under state jurisdiction to overseas Internet service providers. [
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7 Online Gambling Governance Model(Oggm) Between Trading Countries
In light of the offshore application theory presented in the WTO and EU dispute cases, if online gambling is allowed in the country, it should be avoided to limit the freedom of online gambling services between trading countries in principle based on the principle of reciprocity under international law. However, efforts to strengthen consistent regulatory measures for public interest purposes need to be exceptionally permitted if offshore online gambling services affect the lives of their citizens and increase their influence in society as a whole, and are likely to harm their own public order.
Many countries are moving through the COVID-19 period to policies that prevent online gambling regulations from being transferred to multinational illegal markets and allow online gambling services to prevent their citizens from entering the illegal market, so it is time for mutual cooperation between countries to minimize the dysfunction caused by online gambling. However, countries that allow online gambling should strive to implement freedom of online gambling services and consistent regulatory measures through mutual agreement procedures based on cultural differences, national consciousness, competition, business environment and market regulatory methods in each country based on the principle of reciprocity under international law with trading countries.
When classified in terms of market regulation based on a survey of the actual conditions of the online gambling industry by country, it can be largely divided into a free market, a restricted market, and a prohibited market. As shown in Table-1, when this is linked to the results of the survey on the operation of the gambling industry by country, the free market can be linked to a private competition type, the restricted market can be linked to a state monopoly or a private monopoly type, and the prohibited market can be viewed as a market that does not recognize any online gambling activities. Table-3 presents basic model of online gambling governance, focusing on six items that must be mutually observed between trading countries in order to effectively supervise offshore online gambling between trading countries and apply their actual jurisdiction.
In order to recognize mutual jurisdiction between trading countries and maintain regulatory consistency for the protection of public order and public purposes, an integrated online gambling law that can encompass the gambling industry, including licensing and regulation of online gambling, must be enacted. As shown in Table-2, many countries have enacted individual laws for each offline-oriented gambling industry and are supervising the online sector. However, online gambling cannot be controlled because it expands from traditional gambling to new gambling services based on digital platforms. It is also essential to enact a unified, integrated law and designate a unified administrative agency to supervise it.
The online gambling supervisory body should be given investigative and crackdown powers to crack down on acts that disrupt the domestic online gambling service market or similar acts to ensure consistent regulation for public interest purposes. Through this, it is possible to diagnose the appropriateness of cross-border online illegal gambling transactions, introduce a mutual monitoring system between trading countries, block illegal gambling sites, and share information. In the event of an offshore illegal gambling crime, the two countries can establish a regulatory model that can mutually recognize their jurisdiction by establishing a joint consultative investigation body between countries by establishing constituent requirements and related regulations under the Criminal Substance Act, similar to the European Cybercrime Convention procedure. In particular, when extraterritorial investigative matters arise, joint investigative bodies should be given the power to require or order the prompt preservation and public submission of telecommunications data.[
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In the case of pursuing a free market between trading partners, it is essential for offshore online gambling to introduce a system such as the designation of agents in the European Union General Data Protection Regulations (GDPR) for both trading partners to guarantee their jurisdiction.[
17] Through this, it is necessary to impose an obligation to designate an agent to an information controller or entrusted controller established in an offshore area and to cooperate with the supervisory authority by stipulating that it should be done "instead" of the agent's obligation, and to specify that enforcement procedures are directly applied if they do not comply with the regulations.
In principle, the place of online gambling transactions should be applied from the perspective of the source IP, so that tax avoidance and other issues of equity such as tax avoidance should not occur. In particular, the place of conduct of a crime should be stipulated to include the place where the transaction guidance transaction approval was executed, just as the place where the crime result occurred, so that online gambling business operators are obligated to actively respond to efforts to improve service soundness through self-regulation and requests for cooperation from supervisory agencies.[
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It is not easy to find common principles when the regulatory markets between trading countries are different, but it is necessary to at least try to ensure its own jurisdiction and enable mutual regulation by establishing an online illegal gambling information sharing channel.
As online gambling operators have been granted monopoly rights in the limited market, continuous efforts should be made through collaboration with government agencies, information and communication companies and various stakeholders to minimize social dysfunctions such as gambling addiction, and regularly devise measures to protect users through user research and analysis along with the role and function of responsible gambling to enhance the soundness of services.
8 Future Work and Conclusion
With the rapid development of information and communication technology, the gambling industry is rapidly moving to cyberspace, and the proportion of online in the global gambling industry is increasing. With globalization through the Internet, the online illegal gambling industry through various channels is also evolving and growing. Existing territorial-based jurisdictions have limitations and the number of users using bypass technology is increasing rapidly, causing many social problems as well as the mass production of gambling addicts by the vulnerable in society such as adolescents, leading to secondary crimes. Moreover, considering the environment in which regulations on gambling services within the jurisdiction become increasingly difficult as it evolves based on new technologies such as the dark web and cryptocurrency, it is urgent to establish a technology-based policy response system through a multidisciplinary approach due to technological changes.
Online gambling may have different access policies depending on market conditions and regulatory methods according to cultural differences, public consciousness, competition, and business environment in each country. Therefore, consistent regulatory measures should also exist to protect the public order and social public interest of the country without limiting the freedom of online gambling services based on the principle of reciprocity under international law. Moreover, it is possible to protect users according to technology-based social changes in line with the progress of information and communication technology beyond the limits of existing legal principles-oriented formal interpretation, and more convergent and multidisciplinary research is needed to the extent that members of society can accommodate them.