On Tuesday the Gambling Commission published its response to its consultation on direct marketing. The key takeaway is that the Gambling Commission has held firm on its stance that all electronic direct marketing must be carried out via consent. The Commission has also held firm that consent must be granular, meaning that it must be given on a per-product and per-channel basis. Changes have been made, however, with lottery being dropped from the products; push notifications and post being dropped from the channels; and land-based operators have also been removed from the new requirements.

Perhaps most significantly, the Commission has remained firm on its position that soft opt-in is no longer viable for remote gambling operators.

The upshot of the Commission’s response and finalised SR Code 5.1.12 is that all remote operators who wish to carry out direct marketing must present customers with the following marketing choices (as applicable):

• Product: Betting; Bingo; Gaming.
• Channel: Email; Phone; SMS

These choices must be presented as opt-ins, meaning that the options must be unticked and customers will only receive direct marketing for those products and via those channels that they have actively selected.

The new requirements will come into force on 17 January 2025.

The situation for new customers is fairly clear. New customers signing up from 17 January 2025 must be presented with opt-in options on a per product and per channel basis. The boxes will need to be unticked.

The situation for existing customers is less clear. The Commission implementation notes state “Upon log-in after the commencement date, any customer that had not set preferences in line with the requirement will need to do so before they are allowed to gamble. Customers that have already set preferences in line with the requirement do not need to be asked again.” Therefore, where a remote operator already offers marketing preferences on a consent basis and in line with the per-product and per-channel requirements set out in SR Code 5.1.12 then no further action will be required.

However, if a remote operator offers marketing preferences that differ from SR Code 5.1.12, then upon login after 17 January 2025, the customer must be opted-out from all marketing and presented with per-product and per-channel choices before they are permitted to gamble again. Their selections at this time will become their marketing preferences and will override any previous consents.

Operators, therefore, will need to review their existing marketing consents to establish whether they align to SR Code 5.1.12.

Of course, there are likely to be many scenarios which do not fall neatly into the Commission’s proposals – for example, what if an operator currently offers opt-in marketing options for (i) betting, and (ii) gaming, but not bingo. Would this count as having “preferences in line with the requirement”? Probably not.  But what if, in that scenario, the customer had only ticked ‘betting’ and not ‘gaming’? Would it be fair and proportionate to unsubscribe that customer only so that they have the opportunity not to consent to ‘gaming’ and ‘bingo’? And there is the question of cross-brand marketing. The Commission is silent on this point, albeit we now know the overall expectations.

Operators will need to consider these questions (and more) when working out how SR Code 5.1.12 will impact them commercially, as well as understanding their regulatory obligations under the new code.

We are on hand to help with interpreting the new SR Code.