06Apr

Banks Tackling Gambling-Related Harm

6th April 2020 Lucy Paterson 440

Last year the Department for Digital, Culture, Media and Sport (“DCMS”) ministers met with banks and gambling operators to discuss their growing concerns, and how companies could use technology and customer data to help those at risk of developing gambling problems. Brigid Simmonds, chair of the Betting and Gaming Council, recently called for the banking industry to intervene with their customers in the same way that gambling operators are required to – but are banks now starting to play their part?

In November 2018, Barclays became the first high street bank to assist problem gamblers in controlling their gambling, by allowing customers to block payments relating to certain categories of spending, including gambling. Unhelpfully, it can be switched instantly on and off through its online banking app. Since then, many other high street banks have followed suit in making similar measures available to customers, which work by automatically declining any attempted payments within selected categories.

Payment blocking is just one way that banks are attempting to protect customers from gambling-related harm, and the range of measures on offer varies greatly between banks.

Whilst many banks provide the option of blocking gambling payments via both credit and debit card, at present NatWest, RBS and MBNA only offer blocking on credit card payments. When the Gambling Commission’s ban on credit cards comes into effect on 14 April 2020 and customers have no option but to use their debit cards should they want to gamble, these banks will need to review this feature if it is to provide any useful function for customers at all.

Some banks are carefully considering how best to protect their customers from gambling-related harms and are innovating new ways to do so. Starling Bank now:

signposts a customer removing a gambling payment block to the National Gambling Helpline; and

has an automatic 48-hour cooling off period before actioning a customer’s request to remove a gambling payment block.

Similar cooling-off periods are already offered by a number of other banks, including HSBC, Lloyds Bank and Royal Bank of Scotland, and is likely to prove a useful tool for problem gamblers. Research shows that providing customers with a break or interruption in play provides a valuable opportunity to reflect on their gambling and, therefore, their decision to remove the gambling payment block, minimising the risk of impulsive decisions.

Monzo and NatWest go one step further. Monzo requires customers to speak to customer services before the gambling payment block can be removed, creating friction and perhaps another opportunity to reflect on their spending.

NatWest recently launched free psychological counselling in-branch to anyone, whether or not they are a NatWest customer, who has a gambling problem. The scheme was initially launched in several branches in London and the South East, but will be extended based on demand from problem gamblers. HSBC, meanwhile, has sought the assistance of GamCare to train its staff to respond to calls from customers about gambling, and has announced that it will analyse data on card spending to see who might benefit from advice.

A holistic approach is undoubtedly the best way to help those experiencing gambling-related harms and is also the approach advocated by the Betting and Gaming Council in key action four of its Safer Gambling Commitments. It is therefore encouraging to see banks of all sizes accepting that they too have a part to play in tackling the issue, and it is hoped that banks will continue to work closely with the gambling industry, DCMS, the Gambling Commission and gambling charities to improve the tools already on offer and to innovate new ways to help customers manage their gambling.

03Apr

No Love in the Time of Coronavirus

3rd April 2020 Julian Harris 453

On 1 April 2020 the Gambling Commission published its annual business plan for 2020-2021. Inevitably this was drafted prior to the onset of the Coronavirus crisis and the ensuing shutdown of all land-based gaming in the UK, although the Gambling Commission has said that it will review the plan at the end of the first quarter, and publish a revised plan if considered appropriate.

In our blog last week I expressed disappointment at the Gambling Commission’s response to the current crisis and suggested a number of measures that complete shutdown of all venues, mass furloughing, redundancies, coupled with continuing costs and zero revenue. Aside from arcane activities such as Russian table tennis there is no mainstream sport on which to offer bets, so the online industry is also affected to a considerable extent.

No such measures have been adopted by the Gambling Commission. Instead, there has been a series of warnings issued to the industry, including a message from Neil McArthur, the CEO, on 25 March 2020. Whilst recognising the impact on the industry of the crisis and referring to a planned assessment of that by the Gambling Commission, in common with his foreword to the business plan, Neil McArthur refers to evidence of an increase in online slots, poker, casino gaming and virtual sports. This is followed by a warning which in effect summarises operators’ obligations under the law and regulations, following the phrase “I want to make the Commission’s expectations absolutely clear”. As regulator, it is perhaps timely to remind operators of their responsibilities. However, while the negative inference here is that there is an increase in gambling overall, the reality is more likely that there is a spike in those products which remain available online, which is more than matched by the disappearance entirely of many others, and the closure of land-based venues.

Similarly, in his foreword to the business plan, Neil McArthur states: “gambling related harm must be drastically reduced”. It is well known that the levels have been static for many years; in fact, they have slightly reduced over the past 10 years. Of course, in an ideal world, no-one would be harmed by gambling. The numbers should be reduced, which is, on any view a laudable aspiration, given we are talking about 400,000 people. Unfortunately, the suggestion that gambling harm must be “drastically” reduced is not only also probably unrealistic, it suggests that it is out of control, which it is not. Once again, this statement risks harming the reputation of the industry and the level of public confidence in it, at a time when the future of certain sectors is in doubt.

The foreword continues with a statement that if operators cannot protect customers from harm the Gambling Commission will suspend and revoke licences. This is standard fayre, but once again the Gambling Commission has expressed its intention to “get even tougher”. This is an indication of an even stricter approach to enforcement. We believe that this may mean even higher financial penalties, fewer regulatory settlements, with more referrals to regulatory panel and possibly more licence revocations in the most serious cases. Most importantly, licensees should be prepared for many more suspensions of licences at the beginning of the enforcement process.

There is a good news story to note. Following collaboration between three industry working groups, the Gambling Commission and the Betting and Gaming Council (the “BGC”), the UK industry has agreed to a series of safer gambling measures, including:

to ensure that VIP players are over 25 and subjected to spending, safer gambling and enhanced due diligence checks;
to set a minimum 2.5-second spin speed on all slots by September 2020 and remove addictive features, such as slam stops and turbo buttons, as well as split-screen features; and
to improve its use of customer data to target advertisements on social media away from vulnerable groups, rather than towards potential customers, as well as creating media only primarily attractive to those over the age of 25.

In their announcement of this development, reported in more detail in our blog yesterday, the Gambling Commission have welcomed the progress made by collaboration with industry, with encouraging and positive remarks about significant progress. There is always more to do, as indeed the BGC acknowledge.

However, the Gambling Commission has accompanied their announcement with comments from Neil McArthur which has in effect downgraded the good news aspect and undermined the good work done by the industry and the new BGC by stating that: “the proposals do not go far enough and we will now consider what additional measures we should impose on operators.” So instead of accepting that this first collaboration has been successful, the industry is pilloried yet again. This further encourages public opprobrium and demonstrates the degree of responsibility that lies with the regulator for the public perception of gambling. It is then followed by another unnecessary threat that risks reputational harm: “Ultimately actions speak louder than words and any operator that does not put consumer safety first will find itself a target for enforcement action.” These remarks dominate and destroy the positives, calling into question whether in such attempted collaboration the Gambling Commission can be regarded as a trusted partner.

This is profoundly disappointing. When even a good news story is translated into further criticism of the industry and threat of enforcement action in relation to new agreed measures not yet even in force, one has to question whether the Gambling Commission has joined the ranks of the anti-gambling lobby. Of course, it should encourage further collaboration with a view to having a well-regulated industry that protects its consumers and the wider public, and take a firm line against those who do not comply with their obligations. But it is not the job of any regulator to wage a publicity campaign against an entire industry. Indeed, to do so, particularly in the midst of a crisis, and as a result continually erode public confidence in the industry, is not only improper, it is likely to raise questions about confidence in the Gambling Commission as regulator.

The Gambling Commission’s own Statement of principles for licensing and regulation requires the Gambling Commission to regulate gambling in accordance with the Regulators’ code “in a supportive, straightforward, risk-based and transparent manner”. In the current crisis, in its recent actions and publications there is little evidence of it being supportive or straightforward. Those on the receiving end of its enforcement action may also question its transparency. It is certainly taking a novel approach to the “need to maintain public confidence in the gambling industry”, as it is obliged to do.

For regulation to be effective it requires a healthy and collaborative working relationship between regulator and those whom it regulates. Playing to the gallery, the press and those who would abolish gambling risks creating an atmosphere of mistrust and suspicion. The Gambling Commission justifiably wants to make gambling fair and safe for all to enjoy. Progress can be made more effectively and speedily by developing the sort of measures just announced in working together with the industry and those who represent it. If, however the industry cannot trust the Gambling Commission to approach such cooperation in good faith, then the future is bleak.

A more detailed blog on the Gambling Commission’s new business plan will follow next week.

02Apr

“Tell me and I forget, teach me and I may remember, involve me and I learn.”

2nd April 2020 Bahar Alaeddini 473

Training means “the action of teaching a person or animal a particular skill or type of behaviour”. It has specific goals of improving a person’s competence, capacity, productivity and performance. As the title suggests (the words of Benjamin Franklin), any training programme must be coupled with learning and development initiatives.

On the one hand, employees need to replenish their knowledge and improve their skillset to do their jobs better. They need to feel confident about improving efficiency and productivity, and raising standards, as well as finding new ways towards their personal development and success. On the other hand, and most crucially, employers need to:

1. Develop and maintain an effective training and development programme. We recommend this include:

the assessment of training needs across the business;
the review of all communication channels with employees to ensure consistency of messaging;
reviewing existing internal training materials;
reviewing the competency of internal trainers;
the assessment of internal and external training;
considering ways to embed training and development across the business to create/strengthen a culture of compliance and learning; and
an evaluation methodology to measure success or failure.

2. Provide robust, comprehensive, relevant and up-to-date training.

Why is this important?

There is an abundance of reasons. Here are our top 10 reasons:

improved employee motivation and morale;
the workplace is likely to be a happier place;
internal mobility can be an important means of attracting and retaining employees;
maintained and improved employee performance;
identifying and addressing weaknesses;
consistency across the workforce;
increased productivity and internal collaboration;
improved compliance;
increased innovation; and
enhanced reputation and profile.

Training plays an instrumental role in maintaining and raising standards of compliance in respect of a gambling business’ legal, regulatory and licensing requirements, including promotion of the licensing objectives. Creating and cultivating a culture of compliance and learning are vital ingredients for a sustainable gambling business. Before COVID-19, we were facing the most challenging regulatory climate in a generation.

Now is a useful time to take stock and consider what long term sustainability and success looks like for your business, and establish the role that training plays.

Non-compliance is expensive, meaning that prevention is certainly better than a cure. To minimise this risk, we go above and beyond pure legal advice by providing supplementary services to our clients to assist them with staying abreast of legal and regulatory developments and priorities. The aim is to ensure that personal management licence (“PML”) holders, other key staff (for example, compliance, IT developers, those managing PMLs, commercial or other support staff) or a gambling business’ Board or Compliance Committee, understand the obligations and responsibilities that come with being licensed by the Commission.

It is, of course, individuals who make the decisions concerning the gambling business, and, therefore, these individuals who will determine whether the licence holding entity is compliant. Increasingly, the Commission is focused on holding leaders in gambling businesses to account, with the aim to improve Board focus on, and accountability for, the licensing objectives, and encouraging them to set the tone from the top and lead a culture of compliance. This is not a new area of focus. The Commission’s casework continues to show licensees (operating and personal) are not doing enough to learn and, as a direct result, it is taking a stricter approach to enforcement against businesses, imposing bigger financial penalties and tougher sanctions.

Since April 2018, there have been more than £50 million in penalty packages, including more than £30 million in 2020. Since 2018, and during the course of investigations into nine of the most serious operating licensees, the Commission examined the actions of 22 PMLs. Of these, nine surrendered their PML, six received a formal warning, one received an advice to conduct, seven are still ongoing and no further action was taken against two.

Licences (operating and personal) are a privilege, not a right. Training employees is an investment in them and the business, and help protect any gambling operator or supplier’s most valuable asset – its licence(s).

How can we help?

Ensuring compliance with an increasingly complex, pervasive and ever-changing regulatory environment requires expert advice and support. We help gambling businesses before, during and after compliance and enforcement intervention by the Commission. We have significant experience training senior management teams from leading online and land-based operators and suppliers. As external training providers, we bring a new perspective to operators and suppliers used to looking at training and compliance through their own prism.

Our training is very much tailored to our clients’ needs and, in most cases, based on our extensive knowledge working closely with them. We work closely with clients to ensure training is pitched at the right level, informative and interactive, with wide use of case studies.

Our unrivalled training services include:

reviewing internal training materials;
designing new, robust and effective training materials;
developing training and development programmes;
developing employee handbooks and manuals;
delivering training in person (post-COVID-19);
delivering training via videoconference;
delivering training via audioconference; and
training internal trainers.

We regularly train the following stakeholders:

start-ups;
PMLs;
senior management;
compliance departments;
Boards; and
Compliance Committees.

For more details of our training services, please visit our designated Training page on our website, email or call us.
From next week, we will be posting a weekly video blog (we believe the youngsters call this a vlog) or blog tutorial providing training on key topics in the gambling industry. We are committed to creating content you will be interested about and find useful. Please email us with any (reasonable!) suggestions

02Apr

Update on Gambling Commission Industry Working Groups

2nd April 2020 Bahar Alaeddini 484

On 2 October 2019, Neil McArthur, CEO of the Gambling Commission, delivered a speech at a CEO Breakfast Briefing in London in which he looked back at the year, talked about the challenges in the industry and three opportunities to reduce gambling harm:

opportunity 1: game and product design;
opportunity 2: inducements to gambling; and
opportunity 3: advertising technology.

We discussed these opportunities and industry working groups, formed in January 2020 in pursuit of these opportunities, in a blog post on 17 January 2020.

Yesterday, the Gambling Commission published an update on its “collaborative work” with the industry working groups, which included over 30 licensees, co-ordinated by the Betting and Gaming Council, and involved GamCare and people with lived experience of gambling harm.

Whilst “encouraged by the progress”, Neil McArthur challenged the industry to go further and deliver “real and rapid change for consumers”. He said:

“We set these challenges in order to deliver real and rapid change for consumers in key areas of risk. However, it is important these commitments are implemented as soon as possible. It should not take months to implement safeguards many would expect to be in place already…Whilst we are encouraged by industry proposals for making gambling products safer, we now call on operators to implement those proposals rapidly; but the proposals do not go far enough and we will now consider what additional measures we should impose on operators…Ultimately actions speak louder than words and any operator that does not put consumer safety first will find itself a target for enforcement action.”

Safer Products Working Group (opportunity 1: game and product design)

The industry has agreed to:

A minimum spin speed of 2.5 seconds on all slots.
Removal of game features which may encourage intensive play such as slam stops and turbo buttons.
Removal of split-screen slots which have been associated with potential loss of control.
A more detailed work plan which will include in-game messaging and the creation of a Betting and Gaming Council Testing Lab to investigate other game features.
Publication of the final industry code in September 2020.

The Gambling Commission’s response:

“…this work must now go further and faster, in particular around using demographics and behaviours to indicate risk.”
It will issue a consultation on “priority areas” for immediate action “as soon as possible”.

Incentivisation of High Value Customers Working Group (opportunity 2: inducements to gambling)

The industry has agreed to:

Restrict and prevent under 25s from being recruited to high value customer i.e. VIP schemes.
All customers must first pass thorough checks relating to spend, safer gambling and enhanced due diligence before becoming eligible for high value customer incentives.
Reward programmes will also be required to have full audit trails detailing decision making with specified senior oversight and accountability.
Implement some measures from 14 April 2020.

The Gambling Commission’s response:

It will issue a consultation on how to makes these permanent changes as part of the LCCP.
Expectation that the industry implements its industry code “as soon as possible and considers most measures should be implemented within 3 months.”
It will monitor and support implementation of the industry’s code as an interim measure.

Safer Advertising Online Working Group (opportunity 3: advertising technology)

The industry has agreed to:

Amend the Industry Code for Socially Responsible Advertising by July 2020 to include the points below.
A common list of negative search terms (e.g. how do I self-exclude from gambling?) and suppression websites, which will help shield vulnerable groups from online gambling ads.
Better and more consistent use of customer data to ensure paid-for-ads are targeting away from vulnerable groups across social media platforms, instead of targeting for business.
Implement an approach which means that advertising is only targeted at +25 age in social media and “Pay Per Click” advertising where platform facilities permit. This will protect young people and increase confidence in the social media platforms’ own age-gating.
Age-gating YouTube channels and content.
Adopting and rolling out to all affiliates a code of conduct which will be amended and updated on a regular basis to ensure all measures undertaken by the industry will be implemented equally by affiliates.

This working group will also:

Establish a permanent cross-industry Adtech Forum.
Continue the proactive engagement with a wide range of stakeholders (including platforms).
Work with the Gambling Commission to publish and promote consumer advice, and work with online platforms and broadcasters to identify a more effective, simple and consistent approach, about blocking gambling advertising.
Commit to monitoring and evaluating all actions to ensure only effective solutions are pursued.

The Gambling Commission’s response:

“The industry has developed an appropriate set of commitments which should help further limit exposure to online gambling adverts by vulnerable groups.”
It expects industry to work collaboratively with social media platforms to identify and implement further solutions.
Operators will be “held account for these commitments” from July 2020.

Final thoughts

At the October 2019 CEO Breakfast Briefing, Neil McArthur’s final words were:

“If we work together, I am sure we can make gambling fairer and safer.”

The industry’s response to working with the Gambling Commission and investment in meeting tough timeframes should be applauded. Much work is still to be done, particularly to deliver “real and rapid change for consumers”, as the Gambling commission expects. Widespread action and engagement across the industry when the industry codes are implemented and consultations published will be paramount.

31Mar

Productivity in This Time of Crisis

31st March 2020 David Whyte 466

The widespread closure of land-based gambling businesses, coupled with the impact of a hiatus in sport may, however undesirably, present some operators and suppliers with the opportunity to take advantage of additional spare time and ease regulatory and commercial burdens prior to the much-coveted return to normality.

Annual fees

In its recent update, the Gambling Commission (the “Commission”) has confirmed that due to the structure of its fee system, which is based on secondary legislation, it is unable to offer a reduction in annual fees or accept payment by instalments.

The only two options presented by the Commission are:

licence surrender; and
reducing the annual fee payable by applying to vary an operating licence to decrease the fee category where there is a reduction in gross gambling yield (“GGY”).

While option 2 may sound attractive, only some licensees will benefit. We recommend considering the following points when making a variation application to decrease a fee category:

it is the cheapest type of application and only costs £25.00;
it can be submitted quickly and easily though the Commission’s eServices portal;
apply as early as possible – the guideline processing time (up to eight weeks) is likely to be lengthened as the Commission experiences increased levels of absence;
the annual fee reduction will not take effect until the next annual fee is due; and
licensees who have recently paid their annual fee will not benefit from any such variation this year because the Commission does not issue refunds, as it has no statutory mechanism to do so.

Licensees whose annual fees are due in the coming weeks/months and expect to see a significant reduction in GGY should move quickly and submit variation applications as soon as possible.

Please remember that, in accordance with section 100 of the Gambling Act 2005, annual fees are payable before the licence anniversary and the Commission has the power to revoke an operating licence for non-payment.

Compliance

Neil McArthur, CEO of the Commission, has reminded licensees, particularly online operators, of the safer gambling and AML risks presented by COVID-19 and that consumer protection is paramount. In a message to online operators, on 26 March 2020, he said:

“…whilst I recognise the enormous challenges businesses are facing, I want to make the Commission’s expectations absolutely clear… If we see irresponsible behaviour we will step in immediately. So, whilst I know that the current climate is unprecedented, gambling operators must play their part in making sure that people are kept safe…”

As a follow-up to his blog on 25 March 2020, The Gambling Commission’s Response to the Coronavirus Crisis, Julian Harris will be posting his views on Neil McArthur’s latest message shortly. In the meantime, we strongly encourage licensees to view the Commission’s warning as an opportunity to take stock and respond positively and proactively as this is likely to result in improved business practices. Inevitably, this will reduce workloads when gambling businesses are finally able to operate as normal:

We recommend licensees consider the following:

AML business risk assessment

In accordance with licence condition 12.1.1 of the LCCP, all licensees (other than gaming machine technical and gambling software licences) are required to conduct an assessment of the risks of their business being used for money laundering and terrorist financing. This risk assessment must be reviewed at least annually and amongst other things in the light of any changes in circumstances or other material changes.

Licensees may wish to begin their review of this AML risk assessment now, considering internal business changes and the risks presented by COVID-19 (almost certainly a change in circumstances or other material change). Risk assessments that are part completed in draft now will require less time when premises reopen or sport recommences, meaning key employees can focus on other matters.

AML and safer gambling policies

Licensees should review their AML and safer gambling (“SG”) policies. This review should not just consider the adequacy of the policies now, but also the risks presented by COVID-19. Particular attention should be paid to the levels which trigger AML and SG customer interactions, and the approach taken to consider the customer’s affordability given the likelihood of disrupted income. Consideration should also be given as to how audits are completed, and whether any changes are required. Again, the completion of amendments in draft now will mean less effort and time is spent on this review when normality returns.

Marketing

Operators should review their marketing policies, ensuring new customers are on-boarded in a socially responsible way, cleanse customer marketing databases and review relationships with affiliates. They may wish to audit their affiliates and renegotiate terms to strengthen control and their position to deal with non-compliant affiliates.

Training

Employees who have been furloughed and/or who have not been operating in their primary role for prolonged periods of time, may need refresher training on key areas on their return to work. Licensees should take steps now to ensure that they have plans in place for this, to ensure that the high standards being adhered to prior to COVID-19 are maintained. We will discuss training in a separate blog post shortly.

The strong messages from the Commission to the remote industry during the COVID-19 crisis maintain a pre-existing tone that is likely to continue. Land-based and sports betting operators and suppliers should use this opportunity to their advantage so that they have a renewed sense of focus when the time eventually comes to return to normality.

If you would like to discuss any of these issues, please do get in touch with us.

31Mar

PMLs: Maintenance or Renewal?

31st March 2020 Julian Harris 458

We have encountered some misunderstanding, not least on the part of the Gambling Commission (the “Commission”), as to the nature and status of personal management licences (“PMLs”). These licences are required for individuals performing certain defined functions in the gambling industry. Holders of PMLs can be held personally liable for failures on the part of entities holding an operating licence.

The Gambling Act 2005 (the “2005 Act”) provides that a PML has effect unless and until it ceases to do so, by reason either of surrender, lapse, forfeiture or revocation. The Explanatory Notes for section 131 of the 2005 Act, which deals with duration of PMLs, specifies that

“Subject to surrender, lapse, forfeiture or revocation, all personal licences will be of unlimited duration. The Commission does not have the power to introduce limited durations for personal licences.”

However, regulations do provide that a PML holder pay fees every five years of the tenure of the licence. The Explanatory Notes to the 2005 Act explain that these fees are to be paid by the PML holder to the Commission to maintain the licence, and which are used by the Commission to cover the costs of regulation.

On its website the Commission sets out the maintenance process, which involves completing an application including provision of various documents (ID documents, a DBS application (UK and Channel Islands), police report (if overseas) and credit report (if overseas)) and paying the £370 fee. PMLs will no longer receive a maintenance pack in the post. Instead, the Commission will send an email, to their registered email address, informing them that they can sign in to the Personal eServices to start the maintenance process. We understand that this email will be sent on or shortly before the PML anniversary date. If the application is not made within 30 days of the anniversary date (five years from issue and every 5 years thereafter), then the licence will be revoked. Subject to that, and provided of course that the application is properly completed, the process is automatic; it is not a renewal application, and therefore cannot involve any reappraisal as to the PML holder’s qualification, fitness or suitability to hold such a licence. Any such question must form the subject of a licence review under separate provisions.

Until recently there was a reference on the “Personal licence maintenance” page of the Commission’s website to “renewal” of PMLs. This has now been corrected as a result of submissions made by Harris Hagan, that this was wrong in law, as there was no such provision or power. Nevertheless, there is a leftover of this on the webpage, in the inappropriate use of the word “application” to describe the process; this assumes that there is something the Commission is being asked to grant, and therefore something which can be refused, which it cannot. This is an automatic process, the purpose of which is solely the provision of updated information about the PML holder, such as for example, current address and position, and payment of the fee. It is for the Commission simply to check and record the information.

Whilst this may seem pedantic and of little importance, it is vital that the Commission does not assume powers which it does not have, and that PML holders are not confused about their position, or stressed by a pending “application”, which they may believe could be refused. This concern has been thrown into sharp focus in circumstances where PML maintenance has been delayed, or put on hold, by the Commission on the misconceived ground that enforcement action was current in relation to the PML holders’ employer, which potentially could, at some future date, result in a licence review of PMLs. Once your PML maintenance is submitted and the fee paid, and providing this is within time, your obligations are fulfilled. The Commission may ask for further information if necessary. Otherwise the PML continues, and there is no question either of grant or refusal. Job done!

27Mar

Government Help for Gambling Businesses

27th March 2020 Harris Hagan 441

In an effort to help businesses struggling in the face of the global coronavirus pandemic, the Government announced, on 17 March 2020, a business rates holiday for businesses in the retail, leisure and hospitality industries, which is set to last for the next 12 months. However, when the Business Rates Local Authority Guidance was published the following day, it became apparent that the Treasury had specifically excluded casinos, bingo halls and betting shops from the business rate relief by classifying them as financial services.

The Betting and Gaming Council (“BGC”) lobbied the Government in an open letter, advising that its members, which constitute approximately 90% of the betting and gaming industry in the UK, employ over 70,000 people and pay tax of over £3bn, and clearly form part of the UK leisure industry in providing entertainment, food and drink to millions of people every year. Around 64,000 jobs in the betting and gaming industry are at risk following Government-mandated business closures on 20 March 2020, and the cancellation of football matches and horseracing, which has led to a significant reduction in sports betting.

In its letter to the Government, the BGC made clear that:

“If there is no change in the Government’s approach, within months many casinos will be insolvent and we run the very risk that permanent closures of betting shops will occur.
…
Without the kind of help that the Government is rightly prepared to offer other sectors, including in other parts of the hospitality, leisure and entertainment industries, there is a real danger that the physical presence of our industry on the high street, in our towns and cities, will be largely wiped out.
Not only is this a sector which provides a leisure activity enjoyed by millions of people up and down the country, but its closure could lead to a migration of gambling to the black market, which is not only unregulated and an unsafe place for people to bet, but it also contributes nothing to the Exchequer or the country.”

The BGC also suggested other short-term measures which could be introduced to help its members’ businesses survive, including assistance with payroll costs, access to loans and additional time to pay taxes and gaming duties.

Following the BGC’s lobbying, and cross-party support, the Government has now confirmed that the business rates holiday is to be extended to all businesses based in the UK in the retail, leisure and hospitality sector, with casinos, betting shops and bingo halls now forming part of the leisure sector. Businesses do not have to apply for the business rates holiday; it will automatically be applied to their next tax bill.

Additionally, on 20 March 2020, the Government announced its Coronavirus Job Retention Scheme, which is available to every employer in the UK, large or small. Under the scheme, employers who have asked their employees to stop working and have designated them as furloughed workers (and notified them of this change in status) can apply for a grant to cover 80% of their wages, up to a maximum of £2,500 per employee per month, enabling the employees to retain their jobs. This scheme is open for three months, initially, and will be extended if necessary. Details of how to claim through the scheme have now been published.

Further help for small and medium sized enterprises is available via the Government’s Coronavirus Business Interruption Loan Scheme (“CBILS”), under which such businesses will have access to loans, overdrafts, invoice finance and asset finance of up to £5m, with no interest payable by the business for the first 12 months. 40+ accredited lenders offer CBILS, which opened for applications on 23 March 2020 and can be accessed by UK based businesses with an annual turnover of no more than £45million, so long as they meet the British Business Bank eligibility criteria. Further details of CBILS are available here.

Larger businesses can seek help through the HM Treasury and Bank of England Covid Corporate Financing Facility (“CCFF”) which will buy the company’s short-term debt in the form of commercial paper. An explanation of CCFF and its eligibility criteria are available here.

Finally, businesses which pay UK tax and have outstanding tax liabilities may also be able to receive support with their tax affairs via HMRC’s Time to Pay service which has a dedicated telephone helpline on 0800 0159 559.

Further details are available on the BGC’s designated webpage on COVID19.

27Mar

Betting Without Sports & Product Diversification

27th March 2020 Lucy Paterson 441

Following the recent cancellation of almost all sporting events, and with future cancellations and postponements looking inevitable, licensees may be considering diversifying their product offerings in order to provide betting on virtual events and/or eSports. The Gambling Commission (the “Commission”) has emphasised that notwithstanding these unprecedented times, all licensees are expected to comply with the LCCP and the Gambling Act 2005 to ensure licensing objectives are upheld, and that consumers are protected. Therefore, any diversification of product offerings will require careful planning and consideration of the following key issues.

Licensees must ensure that they are appropriately licensed to provide their product offerings. Licensees who hold a remote betting (standard) (real events), or remote casino, operating licence, or the equivalent host versions, will not be licensed to provide betting on virtual events, and an application to vary will need to be submitted, and granted, before offering such activities.

The Commission’s guideline service standard on applications to vary, which it regularly failed to meet pre-pandemic, is “up to eight weeks”. However, as the Commission’s entire workforce is now working from home, it has warned its application processing times may be longer than usual. Furthermore, the Commission has stated:

“We are also unable to fast track applications. We will continue to monitor the situation and will communicate any changes to our expectations accordingly.”

Licensees should, therefore, be prepared for delay. How long is anyone’s guess!

Operators should also be aware of the potential attraction of eSports and betting on virtual events to those who are underage, paired with the potential, with children no longer at school, for increased attempts by the underage to access gambling products. Operators must ensure that they have controls in place which ensure that at the very least, the customer’s name, address and date of birth is verified before they are able to gamble.

Operators should bear in mind the potential for cheating in eSports, with participants able to cheat in order to win or to deliberately underperform in order to lose. Operators who provide betting on eSports must satisfy themselves that the competitions and events upon which customers are able to bet are effectively managed to ensure their integrity and fairness for customers who gamble on those events.

Operators must also carefully consider the risk presented by customers who would usually gamble on sports betting products moving to alternative products, and the effect that this may have on their gambling. The constant and immediate availability of betting on virtual events has the potential to encourage such customers to gamble beyond their usual limits and what they can afford.

In the light of the health crisis, social distancing measures and potential disruption to players’ income, the Commission has reminded “online operators must continue to act responsibly, especially in regard to individual customer affordability and increased social responsibility interactions. As a reminder, expect licensees to:

Assess individual affordability on an ongoing basis – customers may be experiencing disrupted income
Increase social responsibility interactions and intervene where customers are showing signs of gambling related harm
Onboard new customers in a socially responsible way and not exploit the current situation for marketing purposes
Refresh the information they have on customers regularly
Review the levels which trigger interaction for AML and SR
Ensure that your gambling products have been tested by a test house before they are released to the market.”

More generally, operators should be conscious of the need to reassess the risks of their business being used for money laundering and terrorist financing in the light of the introduction of any new products. The AML risk assessment will need to be reviewed and, if required, updated to reflect any changes in risk resulting from the product diversification. New products may necessitate updates to AML and safer gambling policies and procedures, and this should be carefully considered in the light of any updates to the AML risk assessment.

It is important to ensure that the marketing of any new products is carried out in a socially responsible manner and complies with the CAP and BCAP codes. All advertising must also be carried out in compliance with the Gambling Industry Code for Socially Responsible Advertising. The Commission has also emphasised that licensees must not exploit the current situation for marketing purposes. Operators must also ensure that any direct marketing conducting conforms to data protection legislation and that customers are only contacted about virtual event betting or eSports if the required consents have been secured.

Product diversification may well prove to be a useful tool to ease commercial pressures for many licensees in these unprecedented times. However, careful consideration must be given to the gambling legal, regulatory and licensing requirements, and associated risks.

If you would like to discuss any of these issues, including assistance with an application to vary, please do get in touch with us.

25Mar

The Gambling Commission’s Response to the Coronavirus Crisis

25th March 2020 Julian Harris 444

The world is currently facing its greatest health emergency since the Spanish Flu pandemic of 1918 and its worst economic crisis since the Great Depression following the stock market crash of 1929. For the gambling industry this means a global shutdown of land-based venues and a dearth of sports betting opportunities.

The British Gambling Commission (the “Commission”) issued guidance and FAQs last Wednesday, 18 March 2020, recognising these “unprecedented circumstances” and reassuring the industry that they have a plan which will minimise the impact on their regulatory work. The remainder of the guidance reminded licensees of their compliance obligations. Whilst those in the industry who remain able to continue to operate must of course do so in accordance with the law, and the LCCP, this is almost certainly as obvious to them as it is to the Commission, and was probably not necessary to repeat.

In any event, it is only a part of what the industry is entitled to expect from its regulatory authority at such a critical time. The Commission’s own Statement of Principles for Licensing and Regulation provide that the Commission will:

not impose unnecessary regulatory burdens in upholding the licensing objectives;
not unduly hinder the economic progress of licensees;
have regard to the desirability of promoting economic growth and its duty to permit gambling; and
provide a fair regulatory framework within which licensees, both new and existing, can compete and grow with as limited a regulatory burden as is compatible with the protection of consumers, the public and the licensing objectives.

No-one would reasonably expect the Commission to stop regulating as it is required to do. However, its guidance is disappointing in what it does not say; congratulating itself for its own preparedness and repeating the need for compliance, coupled with its apparent lack of engagement with the industry, serve to suggest a lack of interest and understanding of the industry which they regulate, whether this is or is not the case. Some licensees may not recover from this disaster. Many thousands are employed in gambling and are at risk of losing their jobs. The corollary of the Commission’s own policy statement ought to have provoked the Commission also to ask, “how can we help?”

In its guidance the Commission itself asks for understanding of its position; for example, that it may be slower in responding to consumers who call its contact centre and regarding applications to vary to add new licensable activities, which would allow licensees to accept bets on virtual events. And yet it extends no such understanding to the industry.

There are steps which the Commission could at least consider and discuss with the industry to alleviate the burden of regulation, without unduly risking the licensing objectives; for example:

to delay or postpone enforcement activity which is not critical to protecting consumers in the short-term to allow licensees to focus on supporting their customers during this difficult period;
postponing the payment of financial penalties;
suspending the payment of licence fees;
postponing regulatory updates and developments such as the VIP code of conduct and industry code for responsible product and game design;
postponing policy statements and changes to the LCCP and Codes of Practice;
dispensing with PML maintenance requirement; and
assisting the industry in its interaction with Government and advocating on its behalf, for example, on the exclusion of casinos and bookmakers from the recently announced business tax relief intended to ease the impact of the coronavirus pandemic.

None of these measures would impact on the regulatory role of the Commission, nor would they risk the licensing objectives. They might help the industry come through this difficult time with fewer business casualties and job losses. This is an opportunity for the Commission to mitigate the risk to the industry without risking the public or consumers. All of us – industry, regulators, advisers – need to come together to lessen the impact of the crisis, and to ensure that there is a healthy and well-regulated industry for consumers to continue to enjoy in the future.

21Feb

Four Lawyers Ranked in Chambers Global 2020

21st February 2020 Harris Hagan 495

Four of Harris Hagan’s lawyers were individually ranked in the global rankings, for Gaming & Gambling, of the prestigious Chambers & Partners legal directory. For the second year in a row, we are the only law firm, in the world, to have four lawyers recognised in Chambers Global 2020.

Julian Harris was ranked Band 1 and recognised as one of the leading gaming specialists in the UK and a major name in international gaming circles, with peers commenting on his “great reputation” and his “very big standing in the industry.”

John Hagan was also ranked Band 1 and recognised for his “excellent reputation in the industry,” and others saying: “He is at the top of his game.”

Bahar Alaeddini was ranked Band 3 (previously, Up and Coming) with one source enthusing “she is really good because she’s very efficient and well established.”

Hilary Stewart-Jones was ranked Band 2 and recognised as an “excellent lawyer” and for her deep knowledge and long-established commitment to online gaming.

We always strive for high standards in our exciting and challenging legal specialisation in the never dull gambling industry, and believe we are the market leading law firm. We are delighted that our work and commitment to the gambling industry is recognised by the prestigious legal directories.