Marketing and Terms and Conditions: the Gambling Commission’s future focus

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

The recent 2016 ICE Totally Gaming conference in London played host to the new Chief Executive of the Gambling Commission, Sarah Harrison. As well as providing an update on the point of consumption regime and the Commission’s cooperation with other regulators, Harrison’s speech outlined emerging issues and key areas of future focus for the Gambling Commission. In particular, she focused on challenges to marketing and advertising and terms and conditions. We explore these in turn below.

Marketing and Advertising

Whilst acknowledging that improvements had been made, Harrison stressed that more work has to be done with regards to industry failings on the proper marketing and advertising of gambling products. In particular she emphasised failures in respect of placing advertisements on copyright infringing websites, carrying out unsolicited marketing campaigns and failing to comply with the Advertising Standards Authority’s code. Perhaps unsurprisingly, she emphasised that future attention will be specifically directed towards the advertising of free bets and bonus offers and the Commission’s particular concern at the level of breaches in relation to ensuring significant terms are prominent in such adverts. This echoes the Advertising Standards Authority’s criticism at the end of last year.

Harrison also commented that the Commission intends to explore attitudes towards gambling advertising more generally. She highlighted that the Commission’s October 2015 participation survey showed that half the population claim to have seen gambling advertising on a daily basis and that 60% of 18-24 year olds see gambling advertising online every day. Whilst she acknowledged that the Commission does not govern the volume of advertising, Harrison claimed that this can influence public attitudes towards gambling which in turn can impact upon its regulation.

Terms and Conditions

A further focus of the Commission in the coming year will be to ensure that terms and conditions of gambling products offered to consumers are fair and open. Harrison set out that in particular, in order to do so operators must:

1. provide to consumers an accurate and intelligible summary of their terms;
2. ensure that their terms satisfy the Consumer Rights Act 2015; and
3. in practice comply with their own terms and conditions.

Whilst Harrison did acknowledge difficulties for operators to effectively meet such requirements, especially in light of terms being increasingly provided online and accessed via mobile phone, as well as the challenge of ensuring consumers actually read such terms, she stressed that ultimately the gambling sector is failing to implement comprehensive and equally concise terms.

In particular, Harrison criticised complex and lengthy terms and conditions as being ineffective. A challenge is evident in this respect for operators to ensure that their terms are comprehensive and transparent on the one hand, therefore avoiding being deemed misleading, and simultaneously simplistic and concise on the other, in order to be deemed fair and open. In addition to this, operators need to balance such concerns against their own interests. In respect of bonuses for example, the challenge will be to simplify and rationalise terms and conditions whilst also maintaining the necessary protections required by the operator against abuse of bonuses. With the Commission’s focus now turning to this area, it would be prudent for operators to review their terms and conditions in light of Harrison’s comments.