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Through multiple enforcement actions and various court cases, whether online gambling operators owe a duty of care to their customers has become a point of regulatory contention across Europe.
Jurisdictions that have regulated in the past decade and a half, particularly in Northern Europe, have tended to recognise a formal duty of care owed by licensees.
These jurisdictions include Sweden and the Netherlands, where an explicit duty of care between gambling operators and their customers is established in legislation, as well as Denmark, where a “duty of attention” to a gambler’s risk of addiction is similarly laid down in the law.
In France, licence holders are also legally obliged to show a duty of care to their customers, with the country’s national gambling authority (ANJ) laying out the specific ways in which operators should monitor players and requiring them to submit an action plan that shows how they will comply.
These jurisdictions are often compared to other major gambling markets, where a legal duty of care does not exist.
That includes the United Kingdom, where a High Court ruling last November set an important legal precedent.
In that case, global gambling giant Flutter was found not to owe a duty of care to Lee Gibson, a VIP gambler attempting to recover the £1.5m he had lost on Betfair, a brand of Flutter's.
Gibson argued that he was a problem gambler and that Betfair allowing him to gamble away large sums of money breached the duty of care he was owed.
Operators in the UK breathed a sigh of relief after the High Court ruled that no such duty of care exists under English law and that because Gibson had taken steps to disguise his gambling problem from the operator, it was also not reasonable to expect Betfair to have known he was struggling with addiction issues.
The judge also ruled that, in any case, a failure on the part of a UK licensed operator to uphold its safer gambling duties is a matter for the Gambling Commission to handle and not the judiciary.
“The judgment, which upholds a clear distinction between the applicable regulatory and contractual regimes, will be welcomed by operators as bringing clarity and further certainty to the law and the legal framework governing B2C contracts in this heavily regulated space,” said Jemma Webster, an associate with law firm Wiggin around the time of the case.
The UK is not the only major jurisdiction where operators’ alleged duty of care is a matter of litigation.
Late last month, a federal appeals court in Philadelphia upheld a lower court ruling in rejecting a gambler’s claim to recoup millions of dollars in losses from BetMGM, noting that New Jersey courts have consistently found casinos do not have a common-law duty of care over potential problem gamblers.
Similar lawsuits have been filed against leading U.S. operators in other states, including New York and Pennsylvania.
The court rulings in the UK and U.S. contrast with a case in December of 2023, where an individual in Sweden, which does prescribe a legal duty of care, won their case against Betsson.
The Swedish court said the operator should return over €500,000 to the gambler, although in contrast with Flutter in the UK, the judge said that the operator was aware that its customer had been a problem gambler.
De Facto Duty Of Care
Regardless of case law, to some independent observers, the reams of safer gambling regulations actively enforced by the UK Gambling Commission amount to an effective duty of care.
In a 2022 report commissioned by the Dutch Gambling Authority (KSA), researcher Gert-Jan Meerkerk assessed 22 different European countries to establish whether or not gambling operators acting in those markets had an active duty of care.
According to Meerkerk, 11 of those did, including Great Britain.
In the UK, Meerkerk said: “Regulation prescribes an active duty of investigation and care and requires operators to proactively identify customers who experience harm, or are at risk of experiencing harm, and to intervene to reduce harm.”
So, although the law and the High Court would say that there is no duty of care for gambling operators, the raft of protections required by UK licence conditions may effectively mean otherwise.
On a practical level, it appears that for highly regulated markets, the key difference between having a duty of care set down in law or not is how cases are treated by the courts.
This is a financially meaningful distinction, as seen in the contrasting Swedish and British cases.
In the Flutter case, Wiggin's Webster noted that UK operators would be delighted to avoid “cookie-cutter claims from opportunistic consumers”.
Still, in terms of day-to-day compliance, there may not be so much of a distinction.
UK responsible gambling compliance requirements have been wielded numerous times to dole out multimillion-pound fines and the threat of sizeable enforcement is one of the hallmarks of a duty of care regime.
Meerkerk’s research paper was commissioned as the KSA in the Netherlands investigated introducing its own strict duty of care requirement, which it eventually did last year.
The regulator has since set up a dedicated department to monitor operator compliance with the new duty and to hand out fines for breaches.
The first such fine was issued in April, after the KSA responded to a tip that a so-far unnamed operator was not adequately protecting its younger customers. An analysis of ten high-spending customers aged 18 to 23 revealed large sums gambled away in a relatively short time span.
The regulator has fined the operator €734,000 and indicated that more such penalties are likely to follow.
“We have a licensed gambling market based on the idea that anyone who wants to gamble can do so safely. That is why providers have a duty of care towards their players and must respond adequately to excessive gaming,” said Michel Groothuizen, KSA's Chairman of the Board of Directors.
“We have intensified our supervision of the online duty of care and we take tough action against violations such as those we find here,” he said.
From Sweden To Finland
The Swedish Gambling Authority (SGA) has also come down hard on operators it believes are violating their duty of care, but this approach has been met with resistance.
A €1.1m fine for Videoslots over allegations that it did not prevent its customers from gambling excessively is being appealed by the company, which has publicly questioned the “proportionality of current regulatory expectations”.
The SGA told Vixio GamblingCompliance that upholding the duty of care to consumers remains key to Sweden’s gambling regulations.
“The duty of care is a central provision in the Swedish Gambling Act from a consumer protection point of view. It is therefore important that licensees have procedures in place and that measures are taken that actually have an effect on the customer's problematic gambling as soon as possible,” a spokesperson said.
With failure to uphold a duty of care being sternly published internationally, there will be fears of a similarly punitive approach in Finland, where the principle looks set to be enshrined in the country’s new gambling act.
As Finland prepares to abandon much of its gambling monopoly, legislation to allow for licensing is progressing through parliament, likely with little opposition.
A lengthy document produced by the Finnish government outlining the intent of its new act leaves no doubt about the high-level expectations that will be placed on licensed operators, although local experts say the specifics of this particular compliance challenge are yet to be established.
“The holder of an exclusive licence and the holder of a gambling licence shall ensure that gambling complies with social and health considerations in order to protect players from excessive gambling and to help them reduce their gambling where appropriate. The duty of care includes preventing excessive gambling through continuous monitoring and evaluation of gambling behaviour,” it reads.
“[The duty of care] is fairly standard, however, it has been formulated in an unspecified manner and further guidance is to be anticipated,” Antti Koivula of Legal Gaming told Vixio.
