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UK LEGAL COMMENT


Affordability back in the O


Northridge Law’s Melanie Ellis discusses some rare good news for UK operators


n 3rd May, the Telegraph newspaper reported that the Gambling Commission’s plans to impose affordability checks on online gamblers are “set to be shelved”, with the proposals instead to be considered as part of the Government’s review of


gambling regulation. If this report is accurate, this is a positive development for the gambling industry. The ministerial introduction to the Government’s Policy Paper states that “We respect the freedom of adults to choose how they spend their money”, which strongly implies that, as part of the Government Review, requirements for affordability checks will not be as stringent as what would have been imposed by the Commission. The Commission is expected to publish its response to its


customer interaction consultation, which included consideration of requirements for affordability checks, with the next few months. The consultation closed in February 2021 and a similar timeframe to the online games design and credit cards consultations would see results published in early July. It may be that this is now delayed until the Government has published its White Paper, which is the next step in its review, later this year. Although it may be welcomed, this delay would leave gambling


operators in limbo, as they try to understand what arrangements they need to have in place for affordability checks right now. In


26 MAY 2021


the absence of specific requirements, operators are somewhat subject to the whims of what the Commission considers to be adequate and the accusation that “you should have known this is what we expected”. This applies both to the thresholds at which checks should be triggered and the nature of the checks to be carried out – for example when would an open source check be sufficient and when should documentary evidence be requested from the customer. A number of recent licence reviews have focussed on the amount customers were able to spend before being subject to interactions and requests for evidence. The associated public statements published by the Commission have criticised operators for failing to take account of the Commission’s guidance, but without directly explaining what, if any, affordability checks were carried out and why they were insufficient. For example, in October 2020 BGO Entertainment was criticised for failing “to take into account the Commissions [sic] guidance regarding responsible gambling and affordability”, in relation to a customer who lost £159,000 after winning a large sum on the National Lottery. The recommendation for other operators arising from this case was that they ensure their Responsible Gambling Policy “includes a customer’s affordability”.


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