Data Protection & GDPR

Data Protection

The Data Protection Act 2018 sets important regulation for companies to adhere to, with the interests of the general public at its core. All companies, societies and public services whilst they maintain contact with their clients all use personal data.

Under The Data Protection Act 2018 (and the Orders and Regulations made under that Act) the provisions of the EU General Data Protection Regulation and the EU Law Enforcement Directive apply to the Isle of man, even though it has never been a Member of the EU. These provisions will continue to form part of Isle of Man law even though the UK has now ceased to be an EU Member.

Article 31 of the Applied GDPR requires controllers and processors (and representative if applicable) to cooperate with the supervisory authority in the performance of its tasks. In the Isle of Man the supervisory authority is the Information Commissioner who has both investigative and corrective powers. The applicable sanctions are warnings, reprimands, and enforcement notices. Financial penalties for infringement of a provision of the Applied GDPR may be imposed, up to a maximum of £1,000,000. An appeal against certain of the decisions of the Information Commission lies to The Data Protection Tribunal.

Reference Material

Isle of Man Gambling Supervision Commission Guidance on the Gambling (Anti-Money Laundering and Countering the Financing of Terrorism) Act 2018

Isle of Man Gambling Supervision Commission

The Isle of Man Gambling Supervision Commission is an independent statutory board established in 1962. In addition to the licensing and regulation of land-based gambling operations (casino, amusement and slot machines, betting offices and lotteries), the Commission also regulates all online gambling activities, which have grown significantly in recent years.

The Commission adopts a hybrid model of prescriptive regulatory requirements combined with risk-based oversight. The statutory framework of gambling legislation and underlying regulations provides the skeleton upon which the inspectorate monitors the activities of the operator through regular compliance reporting and active contact and interaction with the operator and its key staff.

Class 10 | Analysis Licence

To allow for an Isle of Man laboratory to receive samples that may contain controlled cannabinoids, for the testing and reporting upon the chemistry of the samples
If you already hold a core licence (cultivation, research, extraction or manufacturing licence) and intend to conduct in-house testing or have samples sent to a test lab, the licence is not required
Year 1 licence fee is £12,500, and £8,000 each subsequent year

Class 9 | Manufacture Licence

To allow the manufacturing of any cannabis-based product except one that is created from biomass
Requires an extraction licence if wanting to produce unrefined materials.
Requires an import licence to import unrefined materials with the exception of biomass
Year 1 licence fee is £22,500, and £15,000 each subsequent year

Class 8 | Export Licence

To allow material containing controlled cannabinoids to be sent from the Isle of Man to elsewhere
Not required if you do not come into contact with the with the controlled cannabinoids
Not required if you transport controlled cannabinoids into or out of the Isle of Man for others, but a transport licence (see below) will be required
Year 1 licence fee is £10,000, and £7,500 each subsequent year

Class 7 | Import Licence

To allow material containing controlled cannabinoids to be brought into the Isle of Man
Not required if you do not come into contact with the with the controlled cannabinoids
Not required if you transport controlled cannabinoids into or out of the Isle of Man for others, but a transport licence (see below) will be required
Year 1 licence fee is £10,000, and £7,500 each subsequent year

Class 6 | Extraction Licence

To allow the extraction of cannabinoids from cannabis biomass and the removal of unwanted elements from the extract
Requires a cultivation licence for growing of cannabis biomass
Requires an import licence to import cannabis biomass
Year 1 licence fee is £22,500, and £17,500 each subsequent year

Class 5 | Transportation and Storage Licence

For the transportation and storage of controlled cannabinoids
Allows for the transportation of the produce of Isle of Man licence holders between ports and facilities, or between sites in different locations
Allows for the storage of the produce of Isle of Man licence holders
Not required for storage on the premises of production where a cultivation/research, extraction, manufacturing or analysis licence is held
Year 1 licence fee is £5,000, and £2,500 each subsequent year

Class 4 | Research Licence

For the cultivation of high THC/CBD yield cannabis plants indoors
Allows for the creation of new strains or seedstock
Male and female plant may be cultivated
Year 1 licence fee is £20,000, and £12,000 each subsequent year

Class 3 | Cannabis Licence (High THC Cultivation)

For the cultivation of high THC/CBD yield cannabis plants indoors
Allows for the sale of biomass, live plants and packaged plant parts
Female plant may be cultivated only
Year 1 licence fee is £45,000, and £35,000 each subsequent year

Class 2 | Industrial Hemp Licence with Use

For the cultivation of low THC cannabis for medicinal use
‘Active’ parts of the plant are used to produce Cannabidiol (CBD)
Female plant may be cultivated only
Year 1 licence fee is £10,000, and £5,000 each subsequent year

Class 1 | Industrial Hemp Licence without Use

For the cultivation of low Tetrahydrocannabinol (THC) cannabis for industrial use
The yield crop is used to create fibre or industrial material
Female plant may be cultivated only
‘Active’ parts of the cannabis plant (flowers, leaves and buds) are not used
Year 1 licence fee is £500, and £250 each subsequent year

Litigation

This is the last means to agree a resolution and involves a trial which is legally binding and enforceable – however, it can be appealed.

Arbitration

This is where all parties agree to deal with a neutral third-party arbitrator who has the relevant experience to engage in the matter and considers everything in relation to the matter. If those involved fail to come to an agreement the arbitrator can make a decision that favours one side. Arbitrations can be legally binding, depending on the jurisdiction.

Adjudication

This method is via a neutral third-party where the adjudicator will give a decision. If the dispute is not resolved the clause may also include the provision to apply to the courts to enforce it. Adjudication is a cost-efficient method which helps operations proceed while the dispute is resolved.

Expert Determination

This is an alternative to mediation and is used to resolve disputes of a specialist nature. Again, as with mediation, the outcome cannot be legally enforced, however if those involved agree to this route it may save them from more time-consuming and costly procedures.

Mediation

This clause suggests that a neutral third-party helps to mediate and assist in the resolution of the dispute. Although not legally binding mediation can be an effective way to avoid deterioration of the situation.

Negotiation

This basic clause states that if a dispute should arise between the contractor and project owner that they will attempt to reach a just and satisfactory resolution between themselves, prior to taking any dispute further.

Written Contract

It is important to ensure that these are drafted efficiently, and at MannBenham we can review your existing contracts and work with you to draft new ones when the time arises.

Oral Contract

This is where you have agreed with another for the provision of services or for the purchase of goods but you have not put any of the terms of your agreement in writing.

Loss/Damage

There has to be a basic premise that there has been a loss as a consequence of the professional being negligent. We must prove you have suffered a loss, and the particular kind of loss, to recover.

The requirement of a monetary loss can be shown in a number of ways – if you were physically injured by allegedly negligent conduct and you had to pay a medical bill, or if your property was damaged, we could show the cost to repair it.

Damage may be physical, purely monetary, both physical and economic (loss of earnings following a personal injury) or even reputational (in a defamation case).

Breach of Duty

For there to be a breach of duty a professional must have fallen below the standards of a reasonably competent professional, with regards to the usual standards expected of that particular profession, although considerations are taken into account for errors which do not necessarily amount to negligence.

As an example, failure by a mortgage broker to explain the financial implications of fixing the rate on a mortgage they had entered into with a client is not an oversight or error, but is a fundamental responsibility of the professional role and therefore is a clear breach of duty.

Duty of Care

Professionals, as best practice, normally owe a duty of care to their clients.

For example, when a financial adviser gives advice on investments, they owe a duty of care to the client. They must ensure that they are suitable for the client’s needs.

The client must be able to understand the product, service or investment; but most importantly the risks and implications associated with each product, service or investment.

Causation

In order for liability to result from a negligent act or omission, it is necessary to prove not only that the injury was caused by that negligence, but also that there is a legally sufficient connection between the act and the negligence.

Who can be a Settlor?

Anyone over 18 who is not suffering from any mental disability can form a trust in the Isle of Man. If the home jurisdiction of that person does not have any trust law or does not recognise trusts, that fact will be disregarded in the Isle of Man and does not prevent that person from becoming a settlor.

Forced Heirship

Forced heirship means in some jurisdictions that a proportion of the property held by a deceased person on their death has to pass to particular family members. Property held in an Isle of Man trust is immune from such requirements and the beneficiaries can be anyone the settlor wishes to choose.

Settlor

The founder of a trust is known as the settlor and puts the trust property into the hands of the trustees. The settlor is often but not always also a beneficiary.

Beneficiaries

In the Isle of Man, the trust is established for beneficiaries, who can either be named or described by reference to a class of persons in the trust deed. Most modern trust deeds allow additional beneficiaries to be appointed later, or existing beneficiaries to be excluded permanently or temporarily (at the Trustees’ discretion).

Trust Name

Trusts in the Isle of Man are not on any public register and there is no restriction on what name can be chosen for the Trust.

Protectors

In Isle of Man Trusts, protectors are optional, but often utilised. A protector is not like a trustee, because he or she mainly has powers of veto over trustee decisions. This is because the protector has a close personal knowledge and understanding of the needs of the beneficiaries. Protectors are often professionals themselves, or can be other family members, friends or advisors.

Trustees

Trustees manage the assets placed in trust under the terms of the trust deed. Trustees can be either private persons or corporate entities.

Trustees must manage the trust with the best interests of the beneficiaries in mind. Therefore, trustees are required to be both fair and impartial when dealing with beneficiaries. These duty of care requirements are outlined in the Trustee Act 2001.

Augmented Reality (AR)

Uses either a transparent screen or projection technology to overlay digital information or virtual images in the real world. It turns a physical environment into a digital interface by placing virtual objects in the real world. Most gamblers enjoy placing bets and playing games online, as it is easy and convenient, but they may lose the live experience of casinos. Casinos can use AR technology to improve the casino live gaming experience by combining virtual objects with the real world.

Virtual Reality (VR)

Uses multi-projected environments to create realistic images, sounds, and other sensations in combination with physical properties that replicate the physical presence of a user in an imaginary environment. VR allows the players to experience a virtual casino, along with other players and machines.

Types of Digital Currency

The Isle of Man distinguishes between four different types of online currencies:

Digital Currency
Refers to any electronic representation of a fiat currency and this can include representations of virtual currency.
Virtual Currency
This is a narrower asset and is a digital representation of value which can be traded digitally. The nature of a virtual currency means that it does not need to be centrally controlled or administered. Virtual currency can be either convertible or non-convertible.
Convertible Virtual Currency
Includes cryptocurrency, can be converted into a fiat currency, either directly, or through an exchange. For a currency to be convertible, there does not need to be set rate or an established benchmark, but that merely a market exists and the ownership rights can be transferred from one person to another, whether for consideration or not.
Non-Convertible Virtual Currency
Once purchased, cannot be transferred to another person and cannot be redeemed for fiat currency, either directly or through an exchange.

Office Address & Local Agent

All Trusts must have a registered local agent and a local office address for process service requests and official notices.

Trustees and Protector

Unlike a company, trusts do not have directors, but have trustees, protectors, and settlors that manage the trust. They take on the same sort of responsibilities as a director does with the management of a corporation.

Trustees
Trustees are expected to manage the assets placed within their trust within the terms of the trust’s original agreement. Trustees can be either private persons or corporate entities. In the Isle of Man, three categories of people or entities can be selected as trustees including:

Fiduciary service providers licensed by the Isle of Man Financial Services Authority to conduct trust services
Advocates
Accountants

Trustees must manage the trust with the best interests in the beneficiaries in mind. Therefore, trustees are required to be both fair and impartial when dealing with beneficiaries. These requirements are outlined in the Trustee Act of 2001.

Protectors
In Isle of Man Trusts, protectors are optional, but often utilised. A protector should help trustees with guidance, and also check in with the beneficiaries and the settlor to let them know the trust is being administered for them with the best intentions in mind. Protectors should be qualified professionals or at least have a general understanding of the trust itself, like the settlor him/herself or a relative.

Fit and Proper

In addition to appointing ‘fit and proper’ staff, you are also required to prove that they meet the criteria.

All due diligence documentation on the directors, any designated officials and operations managers as well as details of the shareholders and beneficial owners of the egaming company will also need to be evidenced.

Our team is on hand to help collate all the information and documentation for submission to the Isle of Man Gambling Supervision Commission.

How many gamblers are in the world?

World gambling statistics show that around 26% of the global population gamble – that equates to around 1.6 billion people with 4.2 billion worldwide gambling at least once every year.

The considerate and compassionate handling of Problem Gambling, or to be more specific, Harm Minimisation, is critical when it comes to the global gambling sector. From Australia to the US, from Kenya to the Isle of Man operators, regulators and industry stakeholders are under extreme pressure to provide meaningful solutions which sit firmly atop any media or political agenda.

Whilst the media and politicians have the sector firmly in its sights with high profile and often tragic stories of individuals who have been unable to control an addiction, the numbers afflicted with this debilitating disease remains steady at around 0.5% in the UK. The percentage may have remained small but as the numbers who gamble grow the truth is that more people have been affected and the industry is in an arms race to find solutions that can help.

The answer for us is simple and it comes with collaboration. Be it regulators aligning policy and guidance for their licensees, to operators syncing safer gambling tools, responsible gambling initiatives and making sure messages are uniform and consistent, then what is abundantly clear is that there is no one solution or one provider that will be able to resolve this.

Money Laundering Reporting Officer (MLRO)

This role ensures that any business can satisfy their regulatory obligations including the reviewing and maintenance of:

Money laundering register
Advertising and media register
Law enforcement enquiries register
Anti-bribery register
Breaches and errors registers
Training log
Risk assessments

Depending on your organisational structure, we can provide this and other roles as an outsourced alternative staffing solution rather than recruiting directly yourself. This will give you peace of mind that, as an expert in the field we will ensure you have the right person for the right role, to suit your budgetary needs and resource requirements.

Segregated Client Accounts

This is currently the most cost-effective and popular method used to secure protection of players’ deposits and winnings. There are still strict regulatory controls under which they must operate, whilst monies held are protected under law. These ‘client accounts’ for the sole purpose of holding player money must be segregated from other monies.

As part of these regulatory requirements, accounts must also be set up through a recognised Isle of Man bank, although there may be future provision for this to be extended to include off-island banking relationships. Even with strict controls in place these accounts are open to potential flight risk as the monies can be accessed easily. They can be dipped into and paid back between reporting times, thus falling short of covering any player liabilities at certain times which would result in a breach.

Bank Guarantee

This is an agreement negotiated between the Licence Holder and its bank. However, bank guarantees usually attract a fee from the bank for setting up and a regular fee for the continued use of the facility, and the bank may also require security for most, or all, of the guaranteed amount.

Accessibility to these accounts for both payment and reporting is not governed by control gateways or mandated reporting requirements. It is extremely important to note therefore that should the amount of player deposits and winnings exceed the guaranteed amount or funds on account, then the Commission would consider this a regulatory breach and act accordingly.

Trusts

These see deposits and winnings held in a structure that adequately ring-fences these monies from others with the licence holder. The introduction of a trust structure ensures that there are controls and processes in place managed independently of the licence holder.

On the downside trusts are perceived to be expensive and do incur set-up costs and may specify charges for administration, transaction processing and reporting. Also this process can sometimes be complicated and long-winded with time being taken to set-up, organise trustees and so forth.

eGaming | Full Licence

This could be considered the ‘standard’ licence.

Full licence holders register their own players and keep their player data, and are responsible for anti-money laundering (AML) and know your customer (KYC) requirements relating to them. Full Licence holders can also allow other businesses to either Sub-Licence or White Label under them.

eGaming | Sub-Licence

Sub-Licence holders must enter into an agreement with a Full Licence holder in order to operate, and they can only offer games they have either produced in-house and/or games the Full Licensee has the rights to offer.

White Labels can be offered, and Sub-Licensees keep their player data; although they are responsible for their AML and KYC compliance as though they were a Full Licence holder.

eGaming | Network Licence

These operate the same as a Full Licence, however Network Licence holders have more B2B options to complement their opportunities to Sub-Licence and White Label. Network Licence holders can enter into agreements with other operators located in other jurisdictions, who become known as Network partners once these agreements are in place.

Network Licence holders can then allow the Network partner’s registered players to play their games without being required to re-register them, and they also do not have any AML or KYC responsibilities for these players, as this lies with the Network partner. No fees are due to the Gambling Supervision Commission (GSC) for adding Network partners; however they do need to be reassured about the Network partner’s controls before being added.

Contract Dispute Resolution

Although going to court is an option, there are other ways to settle a dispute:

Depending on the value of the claim under the Rules of the High Court of Justice 2009 you have several options, Small Claims, Summary or Ordinary Procedures. If your claim is complex, or there are other considerations, you should speak with us as to the correct procedure for your claim to ensure your claim is issued correctly.

Mediation requires a neutral third-party to help reach an agreement between the parties involved. Mediators are there to assist, and do not decide the outcome of the dispute. Instead, they look at the situation and help those involved to understand the issues and clarify the options for a mutually agreeable resolution.

There are other methods of resolution which include Adjudication and Arbitration that can enforce a settlement on the parties involved. These methods are often expensive and time-consuming.

Data Protection & GDPR

Regulatory Matters | eGaming

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Insights

John Garland joins MannBenham Advisory

Isle of Man’s Banking Renaissance

Isle of Man Corporate Insolvency

Execution of contracts by Isle of Man Companies

Changes to the Financial Services (Exemptions) Regulation

Data Protection & GDPR | Key Contacts

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Contact us today to discuss your requirements

MannBenham Advocates | 49 Victoria Street, Douglas, Isle of Man, IM1 2LD | Email: [email protected] | Telephone: +44 (0)1624 639350