relying on open source information and averages, might well welcome more formal requirements being imposed by the Commission. Ironically, the Government’s review could lead to a reduction in the affordability evidence being gathered by those operators currently taking a more cautious approach. Although the Commission’s consultation relates only to

spotlight The time lag (often one to two years) between the customer

activity in question and the publication of the outcome of regulatory action by the Commission makes it even more difficult for operators to understand the current expectations. The “additional formal guidance” issued by the Commission in response to the pandemic includes that operators should “conduct affordability assessments for individuals picked up by existing or new thresholds and triggers which indicate consumers experiencing harm”. This adds to the Commission’s customer interaction guidance, which indicates that where operators rely on deposit or loss thresholds to alert them to customers who may be experiencing harm, these should be set with reference to an assessment of customers’ average income, including consideration of information published by the Office of National Statistics. The only real indicator of where thresholds should be is found in the Commission’s Enforcement Report from 2018/19, which references some incomplete and not publicly accessible findings from a YouGov survey indicating that average disposable incomes range from £125 to £499 per month. All of this leaves operators needing to make judgement calls, which has resulted in an uneven spread of checks being undertaken. Those operators carrying out stricter assessments, at lower triggers and/or asking customers for payslips rather than

requirements for online operators, land-based providers also have matching guidance to comply with at the current time. It is possible that, if the requirements for affordability checks are now to be considered as part of the Government review, it will be determined that similar rules should also be applied to retail premises. It is obviously more difficult for a casino or betting shop to track total spend by a customer over multiple visits, although it is worth noting that the Government will be looking at evidence on “developing protections to de- anonymise play in land based venue”. If the Government does introduce account-based play for retail gambling, it is likely to impose similar requirements for affordability assessment to those it puts in place online. The affordability checks which may be imposed by the Commission in response to its consultation may, in any event, be superseded by new “single customer view” technology, allowing operators to understand a customer’s total play across multiple operators. This would be far more useful in terms of protecting players, as even accurate information about a customer’s disposable income is of little value in the absence of the context of how much they are spending on gambling each month in total. The question of whether customers should be limited to gambling in a way that they can prove is “affordable” goes to the heart of the gambling review. The basis for gambling regulation in the Gambling Act 2005 is that the Commission and licensing authorities shall aim “to permit gambling”, subject only to it being reasonably consistent with the pursuit of the licensing objectives. The basic principle at stake here is that people should be permitted to gamble without restriction, to the extent that they are not being harmed by the activity. Requiring people to prove that they will not be harmed before they are permitted to gamble is quite a different approach and potentially requires an amendment to this section of the Gambling Act before it can be implemented.

Melanie is a gambling regulatory lawyer with 13 years’ experience in the sector. Melanie advises on all aspects of gambling law including licence applications, compliance, advertising, licence reviews and changes of control. She has acted for a wide range of gambling operators including major online and land-based bookmakers and casinos, B2B game and software suppliers and start-ups. She also frequently advises operators of raffles, prize competitions, free draws and social gaming products. Melanie has a particular interest in the use of

new technology for gambling products and novel product ideas.

MAY 2021 27

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