In response to the COVID-19 pandemic and lockdown, and based on its interpretation of data collected from operators and YouGov surveys, the Gambling Commission has amended its guidance on customer interaction, without prior notice to operators, by introducing the following additional Responsible Gambling measures, indicating that they should be implemented "as soon as possible":
"Licensees should ensure they have the following measures implemented into their customer interaction framework for the purposes of preventing gambling related harm:
- Reviews of all thresholds and triggers used to track vulnerability to ensure that they reflect changed financial circumstances that many consumers will be experiencing. An emphasis should be placed on those thresholds and triggers being proactively reset on a precautionary basis to ensure customers with emerging vulnerability, such as increased time spent at play or increased spend can be identified
- Specifically, review your time indicators to capture play in excess of 1 hour as this is a proxy for potential harm.
- Set additional or modify existing thresholds and triggers which are specific to new customers reflecting an operator’s lack of knowledge of that individual’s play and spend patterns.
- Implement processes that ensure the continual monitoring of your customer base, identifying customers whose patterns of play, spend or behaviours have changed in the last few weeks.
- Conduct affordability assessments for individuals picked up by existing or new thresholds and triggers which indicate consumers experiencing harm. Consider limiting or blocking further play until the checks have been concluded and supporting evidence obtained.
- Prevent reverse withdrawal options for customers until further notice.
- Stop bonus offers or promotions to customers displaying indicators of harm.
Knowing and identifying your customers at risk of or experiencing harm and acting early and quickly could help stop or prevent the harm worsening.
These measures will be kept under periodic review by the Commission and may be revised in response to changes in circumstance."
For many operators, there will be operational challenges to implementation of a number of these measures. However, steps should be taken to implement them in respect of UK players as soon as possible.
It is noteworthy that the Commission chose to publish this new guidance without prior notice to the industry and, as far as we are aware, without any consultation. Changes to the LCCP are generally implemented with at least 3 months' notice. This is because when amending a licence condition, Section 76 of the Gambling Act 2005 (the Act) specifies that the Commission should consult and provide at least 3 months' prior notice (except where a shorter notice period is warranted by reason of urgency). Meanwhile, the provisions regarding amendments to codes of practice (including SR Code provisions) are found in section 24 of the Act and they do not include a requirement to provide specific prior notice to the industry, merely providing that any revision must state when it comes into force. Having said that, the regulator is required to consult with various parties including "one or more persons who appear to the Commission to represent the interests of gambling businesses". As far as we know, no consultation took place here.
Instead, what the Commission has done is to amend the guidance rather than the wording of the SR Code provision itself. SR Code 3.4.1 states that the guidance must be "taken into account", which falls short of being mandatory. However, the measures set out in the extract above certainly read like a set of code provisions, and we anticipate that in its compliance and enforcement activity, the Commission is likely to consider these measures to be requirements rather than mere expectations. The industry will naturally have concerns that the Commission is effectively amending the SR Code provision by the back door, without consulting the industry, not least because compliance with SR Code provisions is a condition of all operating licences by virtue of section 82. As such, the implications of non-compliance are potentially very significant.
Many will view these measures as further evidence of a strident regulator imposing more and more onerous restrictions in the absence of evidence of increased problem gambling. However, the Commission has long adopted a precautionary approach and, whilst different interpretations can of course be made, the data does suggest increases in length of play and spend on certain products in some categories of consumer. For the time being, licensees should take steps to implement the new measures, notwithstanding any concerns over the means by which they have been introduced. In the current political climate, and in the interests of potentially vulnerable consumers, the industry needs to continue to act responsibly and be seen to be doing so.
Practical guidance for COVID-19
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