On 27 August 2024, the Gambling Commission (“Commission”) published a note explaining that it had revised the wording of the incoming Social Responsibility (“SR”) Code 5.1.12 (the “Update”). Importantly, the Update also extended the implementation date to 1 May 2025.

The requirements around the way in which gambling operators may carry out direct marketing has long been a topic of discussion. The White Paper, published back in April 2023 following the previous government’s review of the Gambling Act 2005, concluded that there was a “case for additional requirements around how gambling operators must obtain consent for direct marketing…”. Later that summer, the Commission consulted on a proposal to introduce SR Code 5.1.12, under which licensees would be required to obtain consent from customers – on a per product and channel basis – to carry out direct marketing. In May 2024, the Commission confirmed in its response to the consultation that all electronic direct marketing must be carried out via consent on the granular basis proposed in its consultation.

It was quite plain, however, that the then-settled wording of SR Code 5.1.12 left important questions to be answered, especially with respect to existing customers. We highlighted at the time in our blog post that the Commission’s implementation notes suggested that no further action was required for existing customers who had consented in line with the per-product and per-channel requirements. However, there was inconsistency between these notes and paragraph 6 of SR Code 5.1.12, which read:

“All customers logging into their account for the first time after the commencement date of this provision are required to have confirmed their marketing preferences in line with this condition before they are permitted to gamble.”

The Commission received feedback from industry that paragraph 6 may require operators to deny service to customers until they set their marketing preferences. The Commission also states that it received queries as to whether a customer’s existing preferences could be mapped across under SR Code 5.1.12. As well as setting out a revised paragraph 6 of SR Code 5.1.12, the Update provides guidance and clarification on how paragraph 6 is to be interpreted by reference to three example scenarios in response to industry feedback. Paragraph of SRCP 5.1.12 has been revised such that it now reads:

“Existing customers who have not already opted out of marketing must be asked at their first log-in after commencement of this provision to confirm their marketing preferences if they have not done so already. Existing preferences can be copied over providing they match the format of this requirement.”

The key points in the Update appear to follow the principle that, if an existing customer’s marketing preferences can be respected in a manner that complies with SR Code 5.1.12, then that customer need not be presented with new marketing preferences to confirm once SR Code 5.1.12 takes effect. This is clearly a sensible and preferable approach for customers and operators.

So, what does that mean in practice?

• it appears that if a customer has already broadly opted out of marketing (or, presumably, opted out of each product offered by an operator), then such customers need not be presented with marketing preferences (and, logically, operators should continue to ensure that such customers do not receive marketing).
• likewise, if a customer has already opted in to receive direct marketing specifically by product (or, in a case where the operator in question only offers a single product, direct marketing generally) and through a specific means (e.g., email), then that customer need not be presented with marketing preferences after the implementation date of SR Code 5.1.12.

If, however, an existing customer’s wishes do not fully comply with SR Code 5.1.12, operators must – on first log-in – ask customers to confirm their marketing preferences in a way that does comply with SR Code 5.1.12. This is addressed in example ‘Scenarios’ 2 and 3 set out in the Update and which:

• emphasise that preferences must be presented on a per-product and per-channel basis;
• emphasise that where an existing customer has opted in to receive gambling marketing generally (i.e., without specifying a channel), then – on first log-in post the implementation date – the customer must be presented with marketing preferences where the specific product selection and the specific channel selection are both left unticked; and
• clarifies that where a customer has already chosen to received marketing on a per-product or a per-channel basis, that existing preference can be copied over when presenting the customer with marketing preferences on first log-in after the implementation date of SR Code 5.1.12.

Though the Update is helpful, it could have gone a step further in confirming what is meant by “copying over” an existing customer’s marketing preferences. Given that the Commission states that an existing preference selection that is not compliant should result in a selection box on first log-in that is left “unticked”, it must be reasonable to presume that the Commission would have no issue were an operator to present a customer with a pre-ticked selection in line with that customer’s previous consent to receive, for example, ‘betting’ only marketing (where betting would be ticked but not the channel) or, on the other hand, gambling marketing by ‘email’ only (where the channel would be ticked but not the product) on first log-in.

Finally, the implementation date of SR Code 5.1.12 has been extended from 17 January 2025 to 1 May 2025. Given that significant technical changes will need to be made – a point which, at times, the Commission does not appear to appreciate when setting deadlines and which can be especially burdensome to smaller operators – it is likely welcome news to industry that operators have been afforded more time to prepare themselves for SR Code 5.1.12.

As ever, if you have any questions please contact one of our team who would be happy to help.

The Update can be accessed here.