On 17 October 2023, the Gambling Commission (“Commission”) issued its response to a consultation, which ran for 12 weeks earlier in the year from February to May, on proposed changes to its Licence Conditions and Codes of Practice (“LCCP”).

The Commission invited views on proposals to:

1. Extend the requirement to participate in the GAMSTOP multi-operator self-exclusion scheme such that it applies to all categories of gambling licensees that offer betting by telephone and email (which the Commission considers includes telephone voice calls, SMS text and instant messaging services, such as WhatsApp). Social Responsibility Code Provision (“SRCP”) 3.5.5 provides an exception to participate in the GAMSTOP scheme with respect to, among others, both (i) remote general betting (limited) operating licences; and (ii) ancillary remote betting licences. The Commission, therefore, proposed to extend the requirement to such licences by removing them from the stated SRCP 3.5.5 exception.
2. Amend Licence Condition (“LC”) 15.2.2 (other reportable events) so as to make it a specific requirement that a licensee notifies the Commission in the event that the licensee becomes aware that a person who has gambled with the licensee passes away by suicide.
3. Amend LC 5.1.2 to ensure that it reflects the current Payment Services Regulations 2017 (LC 5.1.2 currently refers to 2009 Regulations) and to, in essence, future-proof the wording of that LC to account for relevant legislative amendments to maintain the intention of the original LC.

The Commission has confirmed that each of its three proposals will be introduced through updates to the LCCP. The amended LC 5.1.2 will take effect on 31 January 2024, while the extension to the GAMSTOP scheme and the introduction of the specific death by suicide notification requirement take effect on 1 April 2024.

We would urge licensees to familiarise themselves with the LC 15.2.2 language concerning the death by suicide notification requirement in advance of 1 April 2024. While we are aware that licensees might currently report such instances to the Commission under Ordinary Code 1.1.1, from 1 April 2024 licensees will be under the elevated LC requirement to notify the Commission, a breach of which would give the Commission the power to commence regulatory action. Licensees should also note that the notification requirement under LC 15.2.2:

• sets out that the individual’s name, date of birth, and a summary of their gambling activity be included in the notification; and
• applies “as soon as reasonably practicable, if [the licensee] knows or has reasonable cause to suspect that a person who has gambled with it has died by suicide, whether or not such suicide is known or suspected to be associated with gambling”.

In the absence of formal guidance – at this stage, at least – the Commission’s consultation response does provide some passages as to its expectation of licensees. For example, the Commission does not expect licensees to “determine whether the death was related to gambling” and likewise does not expect, in the context of what is meant by a ‘reasonable cause to suspect’, licensees to “actively investigate various sources of information but to be cognisant of developments it might become aware of and respond accordingly”.

It is interesting that under the heading ‘Further guidance on this requirement’, the Commission notes that it has used its response to set out its position on a range of issues, including “the extent to which we would expect them to be proactive” in seeking out information concerning death by suicide. The Commission, therefore, seemingly expects licensees to be proactive – the question being, to what extent a licensee should be proactive. However, as cited in the paragraph above, the Commission also states that its expectation is limited to ‘cognisance’ of developments that ‘might’ come to the attention of a licensee. Whilst the Commission is seemingly trying to limit the notification obligation to instances that licensees are aware of, the prompt to act “proactively” could be interpreted differently by actors in the industry, and so we consider it is important that the Commission does – as it says it will – publish additional information on its website regarding the requirements. We would urge the regulator to be thorough and precise when drafting such guidance and not, as has been the case with other published guidance in recent times, say little more than the wording set out in the LC itself.

Licensees should also note that the Commission states that “there is no expectation on gambling business businesses to proactively check for historic cases” given that the requirement will take effect in April 2024 (albeit the Commission would encourage previous cases to be reported). Nevertheless, the Commission does, somewhat vaguely, also state that it is considering an 18-month to two-year ‘review period’ to assess if it would be useful to apply a time limit to the notification requirement.

The Commission highlights that responses to the proposal were ‘divided’ and points out that certain respondents considered that the notification requirement would be ‘disproportionate’ and could risk “creating an unfair causal link between gambling and suicide”. These concerns are not without foundation and, perhaps to some extent, of the Commission’s own making. In our experience advising clients on information requests from the regulator following a customer’s death, the rhetoric and tone from the Commission in requesting such information has been, on occasion, construed as somewhat accusatorial. It was therefore not a surprise that operators were resistant to such a broad obligation to notify.

The Commission rightly points out that whether a death is by suicide is not for them to decide – it is, ultimately, for a coroner to determine. The Commission should keep that at the forefront of their thinking when licensees make a notification under LC 15.2.2 and we would urge the Commission to adopt a collaborative approach and engage with licensees. If progress is to be made in addressing this sensitive issue, we believe the Commission must avoid defaulting to the position that the operator must have somehow failed from the outset.

The Commission’s consultation response may be accessed here.