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Online Casino Gambling Commission Regulations
The costs of compliance and licensing in Great Britain is already high. Companies can only absorb so much cost before it becomes imperative to pass on additional cost to the consumer.
On 28 June the Gambling Commission published a report into the enforcement action it has taken over the past year: "Raising standards for consumers. Enforcement report 2020-21". In this report the Commission highlights the lessons it wants the industry to learn from its investigations, and provides helpful and timely guidance to gambling businesses on anti-money laundering, customer interaction, self-exclusion, unfair terms and practices and marketing and advertising. These are all areas in which some gambling businesses have been slow to understand that regulatory action does not just happen to others.
So far, so good. However, in the Commission's announcement of the publication of the report, its recently appointed chief Executive, Neil McArthur, also said this:
We also want gambling businesses to collaborate and to invest the same amount of resources into data, technology and research into building better protections for consumers, as they do to creating new products, or advertising and marketing campaigns.
It may be that he simply meant "a proportionate amount". The number of staff and the amount of money spent by the whole of the gambling industry, which is what is contemplated in this statement is vast, running into hundreds of millions per year. It defies all logic to suggest that any industry would or could spend the same amount on consumer protection.
Indeed, other potentially harmful industries such as the tobacco industry and alcohol industry, whilst - like gambling- they pay vast amounts of tax much of which no doubt goes indirectly to the NHS, are not called upon to spend their own profits on research and prevention of the harms caused by their products. Interestingly, in 2013 the BMJ decided it will no longer publish research conducted by the tobacco industry due to the risk of biased results. Whilst there is no reason to believe that research into problem gambling funded by the gambling industry would be inaccurate, equally it is worth considering whether "data, technology and research into building better protections for consumers" would be more suitably funded and carried out by an independent body.
If the industry were to devote the same amount of resources to consumer protection, aside from asking where this money would come from in the first place, one has to ask what would the consequence be?
The costs of compliance and licensing in Great Britain is already high. Companies can only absorb so much cost before it becomes imperative to pass on additional cost to the consumer. And consumers will generally look for the best bargains. We have only to look to other industries to see the truth of that statement: in grocery, the rise of Aldi and Lidl at the expense of Marks & Spencer and Waitrose; in travel the desperate shift downmarket by many national airlines to compete with low cost carriers; or the loss of well known names from the high street to the mighty Amazon.
The same applies in Gambling
There are plenty of supplier choices for consumers, many of which do not enjoy the benefits, or the associated costs, of holding a licence from the Gambling Commission: illegal bookies, gambling dens, poker "clubs", and of course many thousands of online gambling websites in unregulated, or at least inadequate regulated, jurisdictions. It is worth remembering that in the early days of online gambling, many gambling operators with household names thought that they had an immediate advantage in this nascent business. They quickly discovered their mistake. The only factors consumers were interested in were (a) whether they would get paid if they won, and (b) who offered the best value for money: the name was irrelevant. In the same way, consumers are unlikely to choose their supplier because one company has a better consumer protection policy than the other.
Last year in CGI, we questioned the influences on the Commission. In an earlier edition we questioned why the Commission had never apparently, so far as we know, advised the Government to address some of the unfair anomalies that unduly prejudice pre Gambling Act 200S casinos. The point here is that the Commission, at least sometimes, gives the impression that it has unrealistic expectations, suggesting a misunderstanding of the commercial world.
Meanwhile, the Commission's Business Plan for 2020-2022 cites as one or its nve Key priorities "protecting the interests of consumers" and another as "raising standards in the gambling market" These go a lot further than the licensing objectives. It is one thing to ensure that the provision of gambling is fair and safe; quite another to set up as the consumers' champion, which necessarily involves taking sides. Notably, unlike some other gambling regulators, the Commission is not responsible for investigating and adjudicating on customer disputes and its remit does not extend to taking up individual consumer complaints against gambling businesses. Moreover, raising standards implies that they are insufficiently high. This is a subjective point, and again is a judgement call. I he regulator does not say to what level standards should be raised and probably never will, but the implication in this phrase is that the industry's standards are always insufficiently high to meet the standard required.
It is worthy of note that in its Business Plan the Commission says nothing at all about unlicensed gambling, better expressed as illegal gambling. In its Enforcement Report, after dedicating twenty pages to discussing enforcement action against licensed operators in the areas of AML, social responsibility, unfair practices and marketing, we find one paragraph plus one case study about action taken against those operating in Great Britain without holding the appropriate licence. That case, against the operators of the Futgalaxy website, involved the significant aggravating factor that a complaint was received from the parents of a fourteen year old child who had gambled on the website.
It is not apparent from the Enforcement Report what action (other than the Futgalaxy case) has been taken against operators of unlicensed sites targeting adults in Great Britain, other than a reference to "typically sending cease and desist letters". The document sets out figures which show that enforcement action against unlicensed operators is increasing - action was taken against AO operators in 2015, 57 in 2016 and 61 in 2017. Unfortunately, there are no further details on the action taken, nor is it clear how many of these were the aforementioned cease and desist letters, on how many occasions the letters were effective at closing down illegal operations and whether in any cases further action was taken.
Arguably, ensuring that all those carrying out licensable activities are appropriately licensed should be the first priority of any regulator and it is surprising that these figures are tucked away at the very end of the report. This is not just a matter of fairness to licensed operators; for a system of regulation to work, operators must have a good incentive to become regulated, which effectively means they need to be prevented from accessing the market without becoming regulated, or subject to severe penalty if they do access it. Further, as the standards and costs of regulation become higher, the incentive to access the market illegally also increases. The increasing figures for action against unlicensed operators may reflect the increasing burden of regulation - for more operators perhaps it is becoming less attractive to be regulated and more attractive to operate outside the law.
The regulator needs to get the balance right
If the standards and costs of regulation are too high, more operators will seek to access the market illegally and they will have a competitive edge. We are concerned that the scales may now have tipped too far in one direction. With seven figure penalties for making mistakes and the expectation that operators will invest as much into protecting consumers as into building products and marketing, for some the potential costs will price them out of the licensed market. What is more, the lower cost base for unlicensed operators will enable them to offer far more attractive odds and incentives than their licensed competitors.
The Commission has wide powers of prosecution
The industry pays a high price for the privilege of being licensed and deserves protection from unfair competition. The consumer deserves to have his or her interests protected and it is in this last regard that the Commission's efforts need to be concentrated if it truly wishes to protect the consumer. So when Bill Moyes, the Chairman of the Commission, states that the final priority for the current year is "to improve the way we regulate", we would suggest some more focus on those that flout, not just the word of the Commission, but the letter of the law as well.
The Regulator's Role
No-one would seek to excuse licensees who fail in important areas like age verification, AML checks, who, for example, seek to mislead consumers with erroneous terms and conditions or who fail to return their money when requested. But the regulator needs to remember that its role is precisely that; to regulate gambling in accordance with its statutory duty. Regulators should necessarily be impartial, fair and reasonable. The regulator's role is not to promote itself as a consumer watchdog, or as a self- promoting interest group. The Commission has powers that involve it making semi-judicial decisions about the industry and the people who work in it: in that regard they must be as Caesar's wife - beyond reproach.
Under the headline "Gambling Commission makes online gambling fairer and safer", in March 2018 the Commission announced the publication of its review of online gambling (http://www.gamblingcommission.gov.uk/news-action-and-statistics/news/2018/Gambling-Commission-makes-online-gambling-safer.aspx). Neil McArthur, the recently appointed Chief Executive, announced proposals "to protect children better, reduce the risks to vulnerable consumers and build on the measures we already impose on operators to know their customers and intervene at an earlier stage before consumers experience harm.
The Commission has very wide regulatory powers, and a duty to promote the licensing objectives; these include the duty to ensure that gambling is conducted fairly and safely and to protect children and the vulnerable. In pursuit of these laudable aims the Commission can do anything it likes, after due consultation. Its "motto" - making gambling fairer and safer - could in theory be used as a justification for almost any measure, however costly, difficult, impracticable or disproportionate.
The Commission's findings were based once again on surveys conducted, inter alia, by Ipsos-Mori, who have so spectacularly failed to assess voting intentions in the last two general elections and in the EU referendum: this is the subject covered in our previous article "Worrying influences on the Gambling Commission" publishes in the Q3 edition in 2017. What these surveys actually demonstrate is that the incidence of dysfunctional gambling remains at the roughly the same level as before online gambling was invented: a level which is one of the lowest in the world.
In pursuit of the intention expressed by the Chief Executive, the measures proposed by the Commission include:
- Banning operators from providing free-to-play demo games until a customer's age has been determined;
- Limits on customers' spending until affordability checks have been conducted.
In addition, the Commission is going to consider further measures to enable consumers to manage their gambling, review product characteristics to see if certain features pose greater harm and whether credit cards will continue to be permitted. The upshot is that the provision of gambling will be further restricted. On the face of it, this sounds sensible. However, one has to ask where this might lead in the longer term. The Commission's constant trumpeting of its desire to make gambling ever fairer and safer could lead eventually to gambling being so bogged down in an ever thickening mud of restrictions and onerous procedures that it will be impossible to operate commercially, and in any event too burdensome, invasive and boring for the consumer to enjoy.
Take the issue of concern about children and young people. They can play category D machines at any age and they can participate in the National Lottery from the age of 16. But the Commission is concerned that, despite the fact that free-to-play games are not gambling - they are free and there is no prize - they "may" encourage young people to gamble. The Commission's concern even extends to "gambling-style" games offered by non-gambling operators, who are not therefore subject to regulation. Nevertheless, the Commission believe that these operators should provide greater protection.
As for adults, even they are not to be trusted to make their own decisions. Who is to judge how much of their (legitimately earned) funds adults should or should not spend on gambling products? Such an idea demonstrates an unacceptably paternalistic approach to what ought to be private lifestyle choices, not to say an unacceptable invasion of privacy. It seems to be a growing trend, reminiscent of late Victorian puritan prurience to seek to direct every aspect of our lives for our own good. It is a retrograde development. Back in 1978 the Royal Commission on Gambling captured the idea that gambling is somehow a feature of the morally worthless:
The objection that punters are wasting their time is a moral or possibly an aesthetic judgement. As it happens, none of us is attracted by the idea of spending an afternoon in a betting office. But the people who frequent betting offices have chosen to enjoy themselves in their own way and we think that in a free society it would be wrong to prevent them from doing so merely because others think that they would be better employed in digging the garden, reading to their children or playing healthy outdoor sports.
The encroachment of the "nanny state" into so many areas of life is now impacting gambling. The impression is that the Commission somehow disapproves of the activity and this is leading to moral judgements being made about, for example, what each of us can afford to spend; presumably this would depend upon our family circumstances. This highlights the dangers of the intention of seeking constantly and indefinitely to make gambling fairer and safer for all, without ever stating what the end goal is. If the Commission believes that all problem gambling and harm arising from gambling can be eradicated, then however admirable an aim, it is doomed to failure. It equates with those who want constantly to reduce the speed limit for road traffic. They cite statistics proving that lowering the limit will reduce injury and death, the logical conclusion of which is of course a total ban on all traffic. Of course, this is not to say that the industry or the regulator should be complacent in seeking to reduce such levels. However, the means of doing so need to be balanced and proportionate.
In Great Britain, gambling operators are commercial enterprises and in some cases are listed companies. Whatever noble intentions their executive team may have, their first priority must be to be profitable if they are to survive. In today's competitive marketplace, to be profitable, a company must not only deliver a good product, but that product must offer good value to customers. If licensed gambling operators are expected to spend as much on researching and building consumer protection measures as they do on advertising, they will unfortunately be faced with a stark choice if they want to remain in business. They could reduce advertising spend, with the result that their customers go to more heavily advertised sites. Or they could offer worse odds in order to make a higher profit margin per stake, again with the result that their customers go elsewhere. Neither of these options will keep them in business for long. The third option is to resist as far as possible the Commission's demands, to the extent that doing so does not risk regulatory action: the race to the bottom.
The Commission has been focusing on turning operators away from the race to the bottom with its "raising standards" message and increased penalties against licensees who fail to comply with their licence conditions. But if the Commission is to continue to raise standards, the cost of operating at the "bottom" will become such that customers will eventually be driven to unlicensed operators. The Commission must create an environment where it is possible to operate to high standards and be profitable. Enforcement action against illegal operators will become an increasing part of that as expectations increase and we hope to see recognition of this by the Commission in its next Business Plan. However striking a fair balance between protecting vulnerable customers and allowing gambling businesses to flourish should, in our view, be the priority.