Following the publication of its Strategy 2018-2021, the British Gambling Commission hosted its Raising Standards Conference 2017 on 21 November, which further explored some of the themes emerging from the Strategy and the Commission’s priorities for the next few years, which include industry collaboration, the Commission’s work with the UK’s Competition and Markets Authority (‘CMA’) on consumer T&Cs in relation to promotions, and industry compliance with the General Data Protection Regulation. Susan Biddle, Legal Consultant at Kemp Little LLP, reflects on the themes raised at the Conference.
“Go further and faster” was the overwhelming message from the British Gambling Commission’s second annual Raising Standards Conference on 21 November 2017. Well-timed to follow up on the Commission’s publication of its Strategy for the next three years1 (‘Strategy’), this was an opportunity to explore further some of the themes of that Strategy and the Commission’s priorities.
The Strategy, and the Commission’s priorities, remain consistent with the approach of the last 18 months: the focus remains on consumers and their protection. The Commission acknowledged that some progress had been made - but not enough, and not fast enough. The Commission thinks there is still a disconnect between the industry’s good intentions, and its delivery - something which is reflected in the continued decline in public trust.
Richard Lloyd, former Executive Director of Which?, provided some worrying comparisons with other sectors, but finished on a more encouraging note: like other speakers, he thinks that the industry is at a tipping point, but he does not think it is too late to turn it around, provided that the industry acts promptly.
In relation to problem gambling, the Commission will be looking not only at the person who is gambling, but also at how/where they are doing this and the nature of the product being played. The Commission re-iterated the message in the Strategy document, that the industry must focus on exploiting data and technologies to manage risks and protect consumers, as much as it does for profit. Sarah Harrison, Chief Executive of the Gambling Commission, gave the examples of improving existing tools such as reality checks, and exploring new ones such as mandatory deposit limits and stronger age verification. She emphasised the need for robust internal handling of customer complaints, and stressed that it is not sufficient simply to outsource this to ADR (alternative dispute resolution) providers. She warned that the Commission is likely to step up its reporting requirements, and more generally that over the life of the Strategy the Commission will use “tougher and broader” sanctions.
Some of the messages in the Strategy came through with particular clarity. These included the need for the industry to do more to collaborate, and to share knowledge and good practice - and then to implement this learning, including ideas coming from other operators. The industry increasingly recognises the need for this (subject to appropriate protections for commercially sensitive information, and competition law requirements), and participants made the point that the more industry players that participate, the better, as this will reduce the risk of their market and margins being eroded by non-participants. Richard Lloyd warned that big players should be wary of leaving smaller businesses behind and should be willing to invest in industry-wide initiatives for the good of all. There was a welcome suggestion that the Commission will look at issuing more guidance on “what good looks like.”
In particular, the whole industry is expected to learn from the CMA’s current review of consumer T&Cs in relation to promotions - and though its focus has been on online gambling promotions, the CMA considers that its concerns are probably of wider application. The CMA confirmed that it does not intend to outlaw such incentives, but the terms must be fair. The importance that the Commission places on this is demonstrated by its publication of the CMA presentation on its website. It was made very clear that the Commission and the CMA expect all operators to review their T&Cs, and to make any necessary changes so as to meet the CMA’s requirements - and to comply with these requirements immediately as they are published.
The Commission emphasised that it will be monitoring compliance in subsequent months and the industry should expect appropriate enforcement action. The CMA and the Commission are continuing to work together in examining the wider question of withdrawal of player funds. Good practice needs to be embedded in the industry and its products. Social responsibility, otherwise known as ‘safe & fair gambling,’ needs to be part of everyone’s role, from the top down throughout the entire workforce. Kate Lampard, Chair of GambleAware, put in a plea for diverse main boards, so as to get a more complete view of the business and better reflect the diversity of the customer base; she recommended that the person responsible for responsible/ ‘safe & fair gambling’ should sit on the main board. Protections gainst problem gambling need to be designed into products, and not just be later add-ons to meet regulatory requirements.
Many in the industry are not yet contributing 0.1% of gross gambling yield to research, education and treatment of problem gambling. There was a clear message that this requirement is only likely to increase - and if the industry cannot deliver an appropriate level of funding via a voluntary scheme, a mandatory obligation will be imposed. Bill Moyes, Chair of the Gambling Commission, warned that the Government already has the necessary power to impose this and that the Commission believes a national levy would be fair, and it will continue to discuss with Government whether the time has come to use this power. The Commission does not believe that the EU General Data Protection Regulation (‘GDPR’) will prevent responsible use of aggregated data to protect consumers. Gareth Cameron from the Information Commissioner’s Office (‘ICO’) promised that more guidance on the GDPR will be forthcoming, though progress has been made more difficult because the UK Data Protection Bill is still being debated in Parliament. The industry will however need to look to the Gambling Commission for industry specific guidance. Gareth emphasised the importance of accountability - the industry needs to be able to demonstrate how it complies, and to document its decisions in relation to treatment of personal data and compliance.
Consent is not the only basis for processing, and the industry should consider all the options available which include compliance with legal obligations and pursuit of legitimate purposes. It is not yet clear whether compliance with LCCPs or self-exclusion schemes, or use in machine learning or the development of algorithms to flag problem gambling indicators, will constitute the necessary ‘legitimate purposes.’
However Gareth assured the audience that this is the sort of issue which the ICO and Gambling Commission are currently debating, and the ICO will provide further (general) guidance on what constitutes a ‘legitimate purpose.’ Data subjects have strengthened rights, and cyber security is a key concern for the ICO; the industry needs to be sure that it has processes in place to deal with requests and any breaches, including reporting within limited timeframes. The ICO will be encouraging reports of security breaches to be made by phone, so it can provide guidance and ensure that the ICO obtains all the necessary information.
While press and public concern has focused in particular on fixed odds betting terminals (‘FOBTs’), the Commission highlighted that it has also been looking at the online industry, and particularly at online casinos. There was a clear message to this sector that the Commission does not think their due diligence or consumer protection systems are adequate, and operators were expressly warned that the Commission will intervene if they do not remedy this.
So overall, a clear message from the Commission to the industry to “up its game” and to “show not (just) tell,” with consumer protection and problem gambling remaining priority areas, and immediate action points in some areas such as consumer terms, sharing learning, online casinos, use of technology and data, and the levy.