UK LEGAL COMMENT
although “the direction of causality between being more engaged in gambling and taking part in multiple activities is not clear”. In response to this evidence, the Government proposed “an
increased level of customer choice around whether they receive promotional offers and if so, what kind of offers they consent to receiving and for which products”. Four principles were proposed for the Gambling Commission to explore through consultation: • Opt-in to marketing and offers should be clear and separate options at sign-up, not bundled with other consent such as broader terms and conditions and privacy policy.
• Customers should be able to change preferences at any time through their account settings
• Operators must offer the opportunity to opt-in and out of different forms of communication
• Customers should be given the option to opt-in to bonuses and promotional offers separately from other marketing, and to set controls regarding which products they receive offers on. Specifically, there should be no ‘cross-selling’ without user opt-in.
What is the Gambling Commission proposing? The Commission has set out a proposed new provision for the LCCP, requiring that customers are provided with “options to opt-in to direct marketing on a per product and per channel basis”. Despite the clear set of proposed principles in the White Paper, the Commission is not consulting on an option to opt-in to bonuses and promotions separately from other marketing. The departure from the Government’s proposal and rationale for that is not discussed in the Commission’s consultation document. In relation to options for marketing channels, the Commission intends
to require a breakdown of communication options, so that customers must opt-in to receive marketing via each channel separately. Channel options must include email, SMS, notification, direct messages on social media, post, phone call and “any other direct communication method” used by the operator. This final category is somewhat vague and it is currently unclear whether the operator will be expected to offer an opt-in for each communication method they envisage using (e.g. chatbot, video call, face-to-face conversation) or if this should offered as one general catch-all category. Of greater likely impact is the proposal that customers opt-in to
receive direct marketing separately for each product category. This will be broken down into relatively broad categories of betting, casino, bingo and lottery. Betting on virtual events, pool betting and betting exchanges would fall into the “betting” category along with traditional fixed odds betting, while slots, live casino, poker and all other casino games would fall into the “casino” category. As part of the consultation, the Commission is asking respondents whether they consider that any options are missing. Some respondents to the consultation may indicate a preference for more categories so that, for example, customers can choose to receive direct marketing for poker offers but not slots. The Commission rarely makes significant changes to proposed LCCP provisions following consultation, but this does remain a possibility if it receives a large number of responses along these lines. Under the proposals, existing customers will need to be presented
with the opportunity to update their marketing preferences, as well as new customers being offered this on registration, with all options set to ‘opt-out’ by default. Remote customers should all be directed to review their marketing preferences at the first opportunity following implementation, e.g. on their next login. Operators will be given time before go-live to direct customers to do that, so that marketing
preferences can be chosen before the time they must all be set by default to opt-out. The implication is that, from the implementation date, direct marketing may not be sent to any customer who has not chosen to amend any options from ‘opt-out’ to ‘opt in’. There is no proposal to break marketing preferences down by
whether the product is remote or non-remote, so a land-based casino that also has an online presence would be free to send direct marketing about online products to non-remote customers and vice versa, provided they still fall under the general heading of ‘casino’. Non-remote operators should also note that the Commission is seeking views on any particular challenges to implementation that may be relevant to them, given potential logistical difficulties with presenting customers with the opportunity to update their marketing preferences.
Consequences of breach The new requirements will take the form of a social responsibility code provision, which will have the effect of a licence condition. Sending direct marketing that contravenes a customer’s channel and/or product selections would therefore be a breach of the licence that could result in a licence review, leading to a warning, fine, suspension of revocation of the licence. In practice, it seems unlikely that an isolated and unintended breach of these requirements alone would lead to regulatory action, although persistent or serious disregard of the requirements may well do so. The Commission holds operators responsible for any breach of the
LCCP caused by the actions of its third-party advertising affiliates, in particular this has been the case where direct marketing has been sent to self-excluded customers by an operator’s affiliate. It should be expected that a similar position will be taken in relation to the new direct marketing LCCP provision, so it will be important that operators ensure advertising partners amend their marketing lists upon implementation of the new requirements, and that they promptly communicate amended customer marketing preferences. Sophisticated and effective systems, combined with regular staff
training, will likely be needed to ensure marketing materials are only directed at the correct customers.
Timing and further changes to marketing The Gambling Commission is conducting additional consumer research on bonus offers and incentives, which it is due to complete in Autumn. The Commission hopes this will provide further insights on how cross-selling affects play behaviour and a further consultation will follow on how marketing incentives may be constructed and targeted. In the meantime, responses to the current consultation must be submitted by 18 October 2023.
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.
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