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A daily podcast delving into the biggest stories of the day throughout the sports betting and igaming sector.
Charlie Horner (00:01.611)
Skybet secured a win at core after successfully appealing a 2025 High Court ruling concerning marketing material sent to a self-described problem gambler. The problem gambler argued that they had never consented to receive direct marketing and therefore it was unlawful. The Flutter brand disputed the argument and appealed the 2025 ruling. After successfully appealing the ruling, what does this mean for UK operators and their responsibilities as data controllers under GDPR?
And what else can we learn from this case? Welcome back to iGaming Daily, supported by OptiMove, the creator of positionless marketing and the number one player engagement solution for sports betting and iGaming operators. I'm Charlie Horner and today I'm joined by SBC News editor Ted Orme Clay. And Ted, you know, lot of the time on the show we have to say that we aren't lawyers, so...
Ted Orme-Claye (00:57.1)
Yeah
Charlie Horner (00:57.611)
We've got some friends with us today. We've got Adelaide Lopez and Patrick Rennie, both partners at Wiggin LLC and members of IMGL, which acted on behalf of Skybetting and Gaming in these proceedings. Adelaide, Patrick, thanks ever so much for joining us. How are you doing?
Adelaide Lopez, Wiggin LLP (00:57.966)
you
Adelaide Lopez, Wiggin LLP (01:15.426)
Yeah, thanks for having us. Thank you. Great. It's been a really busy and exciting week. This is an exciting judgment for us and for SkyBending Gaming and I think probably a relief to a lot of operators and businesses that conduct business online generally. So we're doing well.
Patrick Rennie (01:22.235)
Thank
Charlie Horner (01:35.039)
Yeah, absolutely fantastic. It's great to have you. Patrick, perhaps you could kick us off. Could you just introduce yourself firstly and tell us a little bit about the work that Wiggin did on this case?
Patrick Rennie (01:48.392)
Yeah, of course. So I'm a partner in the data protection team. That is all I do. And Adelaide and I have been working with Sky Benning Gaming on this case through the High Court and the Court of Appeal. We advise operators in the industry supporting our Benning Gaming team on all matters, in particularly for me, data protection and for Adelaide, litigation matters. So this was a case that sat squarely between Adelaide and I's skill set.
Charlie Horner (02:19.239)
And Adelaide, would you like to provide a bit of insight from your side as well?
Adelaide Lopez, Wiggin LLP (02:23.948)
Yeah, so as Patrick says, Wigan is a firm, tends to be, we're a full service firm that provides sector specific advice. So we specialize in sort of all things entertainment, including betting and gaming. And this case was something that sort of sits in the middle of all of those different areas. It was...
It was really a landmark data protection case at a time when a lot of data protection cases are constantly getting batted back from the courts because they tend to be group claims or class actions which have not made much headway. And so I think this was something that was being, a lot of attention was being given to it, particularly after the high court judgment, which essentially redrafted the law on consent for direct marketing. But yes, Patrick and I worked very closely on this and other sort of data protection disputes.
matters and have been working on this case for.
Four years now, three years now. It's been going on forever.
Charlie Horner (03:28.427)
Well, it sounds like it's taken a lot of your time and you talk about some of the reaction. Ted, you've been writing about this on SBC News from an editorial point of view. How big of a case do you view this one as?
Ted Orme-Claye (03:43.811)
Well, yeah, our friends at Wigan have just outlined, yeah, a pretty significant case, a pretty significant win for Skybert and for Flutter overall. You know, it's a good look for them to be able to secure this win from the Court of Appeal. And I think something that I'm sure that the guys from Wigan will be able to expand on this further than illegal layman such as myself.
But you know, a real positive I think for this, that we're getting from this for the industry and for SkyBet and brands like them is some more clarity about what exactly, where they stand when it comes to data protection and customer consent around data and that area, which obviously for brands like these who are dealing with countless, hundreds of thousands of customers on a regular basis.
have so much data to control and process, knowing exactly where they stand with it is incredibly significant, especially when rulings against them in this sense can be quite damaging from a PR perspective or from a financial standpoint, from a legal standpoint and so on. So yeah, I think the main observation I think we took from this is the clarity we're getting around it is a real positive for the industry from a lot of the reactions I've seen.
Charlie Horner (05:07.314)
Yeah, certainly it's good to have clarity, particularly on matters such as... Matters as important as this, sorry. Let's take a step back though and get the background of the case because it's always good just to lay the scenario out. So Adelaide, perhaps you could give us the background of the case and tell us a little bit about why Sky Betting and Gaming made the appeal.
Adelaide Lopez, Wiggin LLP (05:33.199)
Sure. So as I think was mentioned before, the claim was brought by a player, a customer of SBG. The player has been anonymized. So RTM is anonymization that was chosen by the court. And the player was a sort of self-described problem gambler. He'd been betting with the platform since 2010, but the claim was only from 2017 to 2019.
And the claim was related to a number of data protection matters. It wasn't just in relation to receiving direct marketing, although that was part of the claim was that direct marketing was received without the player having provided consent, but there were additional claims of misuse of their private information, improper processing generally in the background, for marketing purposes, but also for safer gambling purposes.
at DSAR, as always happens in these cases, a DSAR had been brought in the first instance. A number of DSARs were brought, and so there was also complaints related to those. That was then heard by Mrs. Justice Collins Rice in November of 2024 in a five-day trial. that trial was, there was cross-examination, both of the player, but also of various individuals at
at Skybetting and Gaming, providing evidence from everything from how data is processed to how data is managed at a sort of regulatory level, as well as how safer gambling operations work. So it was a really in-depth trial, but ultimately the judge seemed to be particularly focused on this idea that the player was a self-proclaimed problem gambler, because there was never diagnosis, was never expert evidence that...
that they were a problem gambler, that they had addiction, but a self-proclaimed problem gambler, and that as a result of that condition, they didn't provide valid consent to receiving marketing. It wasn't disputed that they did something, that they ticked a box or did something to consent to receive that direct marketing, to receive those emails, said, you know, bet now and you get extra bonus for...
Adelaide Lopez, Wiggin LLP (07:53.839)
betting in this particular race. There was no question that they had potentially ticked that box, but the question was whether or not that was legally valid because of their state of mind, because they're gambling. And in doing so, Collins Rice created a whole new test for consent, which essentially made consent based on what was going on in the head of the player, as opposed to, which is not something obviously a
a platform could know. You can't know what's going on in someone's head unless you go knock on their door and sit down or attend their therapy session to know what's going on in their head. So essentially, it was putting operators and anyone who sends marketing in this unenviable position of always having a certain amount of risk in sending out marketing. And this was never the test for
consent for direct marketing. was never what was conceived. It was always intended to be an objective test. And that was what was so problematic with this case. And that was where we were sort of left at the end of the trial is that we had this new, a new test that essentially said A, consent that marketing had sent to him without his consent. And B, that as a result, all the other matters that needed to be decided didn't have to be decided because obviously this sort of vitiated everything else.
So was a really problematic case, not just for SBG, but for anyone, particularly in the gambling sector, but wider, anyone who was sending marketing to anybody who could potentially be vulnerable without anyone knowing.
Patrick Rennie (09:27.226)
Thanks.
Charlie Horner (09:32.114)
Yeah, I think there's two really important points there. I think one is we know how important marketing is for regulated gambling operators in the UK or in any jurisdiction for that instance. And if they can't do that with confidence, then we know the black market argument is often made. And then the second is there's a lot of complexities around gambling addiction and whether someone is a problem gambler or not.
So for someone for an operator to have to essentially guess whether a player is, yeah, that's another complexity. Patrick, I'll bring you into the conversation now and could you just outline what the central arguments for and against were in the appeal and ultimately what did the case hinge on?
Patrick Rennie (10:20.56)
Yeah, of course. So there was five grounds for the appeal, but I won't bore you with all of them. And there's essentially three main grounds of appeal, which I think are probably most interesting for the listenership. I mean, the first one is that the High Court had made its decision on a case that wasn't pleaded by RTM and therefore which Skybenning Gaming were unable to defend. And what that means is...
RTM's argument was that he didn't consent to receive direct marketing, that they simply never ticked the box. But what the judge found was that they probably did tick the box, but because of their state of mind, that consent wasn't valid. So it's an important distinction, but ultimately it wasn't a claim, it wasn't a case brought by RTM. So that was the sort of first one. The second key grind,
was that we said that the court's test wasn't actually based on law, and it applied the wrong test. So the UK GDPR defines consent as having to be specific, informed, freely given, and unambiguous. And these are objective tests. Whereas Anani Court came to this, created this new test that consent should be subjective or autonomous, and in either event, evidential.
Now, evidential doesn't matter because there's already Article 7 in the UK GDPR, you have to go to demonstrate consent. So that doesn't actually add anything. But the risk is that subjective or autonomous just collapses as it did in the High Court judgment into a subjective test. What was actually going on in the data subject state of mind? So the second ground there was that that was the wrong test. It shouldn't have been created and that we should revert back to what the actual UK GDPR says.
And then the third part was more technical and more case specific, but was essentially that the RTM had given their consent in this case. So I think in the High Court, Justice Collins-Rice had said that RTM had probably done something to trigger receiving direct marketing, but ultimately there wasn't enough evidence and the balance of probabilities wasn't enough to say that that was valid. Whereas, you
Patrick Rennie (12:40.722)
SBG's argument and our argument was actually balanced probabilities is the test. And if your conclusion is that on the balanced probabilities, they have done something to trigger direct marketing and that something is probably consent, then no further questions need to be asked. So those were the three main grounds of appeal. The first two probably being the most important for the wider industry. And as Adelaide touched upon, not just the betting game and sector, and I know that that's the focus of this podcast, but
But other industries as well, know, when you think about Tesco sending marketing about, you know, two for one on beer during the World Cup or something like that. If the person was an alcoholic that received it, where does that leave Tesco? So important to appeal these things. And as I say, those were the three most important grounds and the first two being the most important for the wider industry.
Charlie Horner (13:36.253)
Fantastic. ultimately is that why the Court of Appeal is those three core arguments, why the Court of Appeal ruled in SBG and your favor.
Adelaide Lopez, Wiggin LLP (13:47.32)
All five, actually. All five. It was a clean sweep. I think that ultimately, unfortunately, I think that the High Court's approach to this essentially tainted the waters generally. And as a result, the Court of Appeal almost had to go back to basics. I think once you deal with ground one, it's a fairness question.
Patrick Rennie (13:47.447)
Should I take it out of the way? Yeah, yeah, all five. Five out of five.
Charlie Horner (13:48.457)
All five. Well, there you go.
Ted Orme-Claye (13:52.206)
Yeah.
Adelaide Lopez, Wiggin LLP (14:16.823)
You can't cause a party to, you can't allow a decision to be made that is on the basis that defendant didn't have a chance to argue. It's just a basic premise of our judicial system. And on the test, I mean, that was so important that the ICO in fact intervened in this case. So, which is something that indicates how significant this was. So the ICO intervened.
and largely was in favor of the fact that the test was wrong. They didn't sort of come down either way in terms of who was right, in terms of results and whether or not RTM actually provided their consent. But in terms of the test itself, the ICO felt that that was significant enough that the commissioner felt it necessary to intervene in the case. So ground two, it wasn't really surprising that we won. think the judge on ground three felt
it sort of follows if once you get the test correct, and as Patrick says, once you get the test correct and once you do put in the correct standard of proof, that it's correct that RTM did provide consent on a certain date. And then everything else kind of follows, everything else sort of followed from that. it was a clean sweep, which was really gratifying, I think. And then the question is, what next? And the judge has indicated that...
spoiler alert, that we'd be remitted for retrial. So we're still waiting for the judge's sort of final order on that and submissions have gone in, but the judge has indicated in the public judgment that the balance, if for no other reason than the balance of issues that weren't decided by the high court in the first instance, still need to be decided, that the case is going to be remitted for retrial. So back we go to figure out the rest of it.
Charlie Horner (16:03.452)
we go indeed. Ted, Adelaide, Patrick will take a quick break and we'll come back and talk a little bit about what we can learn from this case.
Patrick Rennie (16:11.699)
Okay.
Charlie Horner (16:14.266)
Welcome back to iGaming Daily. Now, Ted, there was a lot to digest in the first half of the show there, but I guess from an editorial point of view and from our sector's standpoint, we know how important marketing is just for the day-to-day operations of a huge operator like Skybet, so I guess what can you take away from this case?
Ted Orme-Claye (16:40.785)
I mean, not to try and repeat myself, obviously, like I said earlier, I think one of the main takeaway for the industry, and this is that they now have clarity about where they stand around consent and data protection and so on in instances like this. I think one of the main takeaways obviously is that companies know that they, to paraphrase a bit here, they don't need to know what's going on inside someone's head.
Patrick Rennie (16:43.443)
Thanks watching.
Ted Orme-Claye (17:08.11)
when data consent is agreed to or given. But obviously, know, throughout these hearings and so on, as the guys from Wigan mentioned, know, safer gambling was brought up quite a bit. That is still something that is very significant for the industry on top of this and, you know, and receives a lot of publicity. That's not going away anywhere. So, you know, the industry may have the clarity it needs around data consent and so on.
Patrick Rennie (17:14.61)
Thank you.
Patrick Rennie (17:24.69)
Thank you.
Ted Orme-Claye (17:37.817)
but the general importance that we've been putting on player protection, customer safety and so on and analyzing player behavior still needs to remain there and become even more important really given a lot of the other regulatory conversations we're seeing right now, the conversations around financial risk checks and so on.
Yeah, I feel like I've rambled a bit there, but know, it's kind of, there's a bit of a multifaceted answer, I think.
Patrick Rennie (18:05.233)
Thank
Charlie Horner (18:09.576)
No, it certainly is. Go ahead.
Adelaide Lopez, Wiggin LLP (18:09.936)
I think it's, I just want to sort of reinforce that I think that's absolutely right. And I think it's something that the judge and the court of appeal emphasized when there was a conversation about whether or not the standard should be for consent should be whether or not the operator knew or ought to have known that there was a gambling problem. And the judge was very quick to say, no, that's not the standard. This is an objective test. That doesn't mean that that standard doesn't have a place.
in other data protection analysis around potentially fairness or anything like that, because obviously it follows that if an operator knows that a player is as a gambling condition, there could be other data protection questions that arise from that. But most importantly, as you say, Ted, we just had the Gibson judgment last year, and it's reiterated that there is a no or should have known standard that is still in play when it comes to safer gambling, and that shouldn't be missed.
And certainly we handle a lot of duty of care cases on a regular basis. And those standards are still in place and still need to be kept in mind.
Charlie Horner (19:16.312)
We said at the start of the show that this is a landmark data related case. Patrick, we have a lot of operators within our listenership. What message do you have for them in terms of what they now need to know about their data protection policies following this case?
Patrick Rennie (19:34.275)
Yeah, I think with that, it's, I mean, the first thing is to breathe a sigh of relief. Because trying to adopt and evolve your policies to meet the requirements of the high court judgment and the subjectivity was incredibly challenging. So, you know, they can breathe a sigh of relief. Common sense has prevailed. As Ted mentions, the key thing that we've got here is clarity.
And we've got legal certainty. So operators know that if they're going to send marketing to customers, which they want to do, it's an important part of the industry, then they need to be able to demonstrate objectively that that consent that they've obtained is freely given, specific, informed, and ambiguous. So making sure that they are upfront and clear with their customers.
about the marketing that they're going to send them and what ticking the boxes will actually mean in practice. Making clear that the boxes are fairly laid out and that there's no incentivizing or anything like that or bundling of consent with T's and C's. All stuff that they should know. But it's a good reminder, you walk through those four things, is it informed consent? What are we actually told? Tick the box, what does that mean?
And is it specific? Is it unambiguous? Those two sort of largely kind of live together, to be honest. And is it freely given? Is there that clear choice? Yes, I want marketing or no, I don't. And I think it just gives operators the chance to assess that and know that if they follow this judgment and the test, that they will be compliant. And that is hugely important. People need clarity and they need certainty.
Charlie Horner (21:19.41)
Yeah, absolutely. It's great for the industry to have certainty from this. But Adelaide, what about the consumers? How will consumers be impacted by this judgement? I guess, what do we think will change for those who might think that they have a gambling problem?
Adelaide Lopez, Wiggin LLP (21:41.585)
I think that this essentially takes us back to this takes us back to basics. It takes us back to where we were prior to the original trial. And as a consumer myself, it means that you retain the autonomy you always had over the choices that you make and the commercial choices that you make. And if you don't want to be receiving marketing, then you don't take the box. And I think anybody who engages with
online life in 2026 is sort of really recognizes what this setup looks like and recognizes what it means to unsubscribe from things and to tick a box because you do want to receive a bonus or you do want to receive a discount or you do want to receive whatever the thing is that's being used to incentivize you into doing something. You might take advantage of that and then you might decide down the line that you don't want to have that receive those marketing emails anymore.
Patrick Rennie (22:30.283)
Okay.
Adelaide Lopez, Wiggin LLP (22:35.502)
And that is part of our modern lives. And I think that is something that is showing the balance that the courts are finding, the struggle between sort of a sort paternalistic state of looking after people, but also making sure that people and that there is a certain amount of commercial freedom that's exercised in a democratic society. And I think that that all still remains. If you're a vulnerable person, I think that it's...
I do think the balance is still on the right side. And I do appreciate that what the court in the first instance was trying to get at was the idea that you had somebody who would just go ahead and tick any box they had to in order to get through, in order to keep playing. But it can't, it freezes, it freezes commercial life if that possibility, if the mere suggestion of that possibility means that you can't have some kind of certainty on risk. So I think that
Patrick Rennie (23:08.298)
So, thank
Adelaide Lopez, Wiggin LLP (23:30.116)
Where we're at is where we always have been and where all of us expect to be as consumers, which is you have ownership over your own choices and you have ownership over what consent that you provide. And that remains a case. And you also have to sort of the consequences of making those choices. So I think that's where it largely leaves us.
Charlie Horner (23:49.672)
Okay, so Ted, it looks like we'll still have to read the Ts and Cs, all right? Make sure we do that.
Ted Orme-Claye (23:54.53)
Yeah
Adelaide Lopez, Wiggin LLP (23:55.256)
and your privacy notices.
Ted Orme-Claye (23:57.262)
Ha ha.
Charlie Horner (23:58.172)
Exactly, exactly. Yeah, yeah. But it does make sense that we are sort of back to basics, as you say, Adelaide. Ted, now we've learned all this from both Patrick and Adelaide. What do you think best practice looks like for operators who, as we know, they want to create effective, engaging marketing campaigns, but they also do want to protect vulnerable consumers and make sure they do have those safer gambling policies in place?
Ted Orme-Claye (24:28.61)
Well, I mean, just to start off, think Adelaide made a very good point there, you know, about customers, consumers need to be aware of what they're signing up to. Operators, think to build on that, operators also need to make sure that their consumers are aware of what they're signing up to. You need to make sure there's lots of transparency there. You need to make sure the information is provided. Obviously that is done with the, like we say, the tick boxes, sign up to this, sign up to that.
But yeah, really just sort of making sure that's as transparent as possible. That's a step one. But moving on from that, going a bit deeper, you we talked earlier about the safer gambling and player protection argument and how significant that is in the modern industry. I think, you know, making sure that you're monitoring player behavior, monitoring transactions as much as possible.
to make sure you're not then sending direct marketing, not just sending direct marketing to people who may be experiencing gambling harm, problem gambling, also making sure that they're getting the help they need and signposting them. Ultimately, you don't want people who are problem gamblers gambling on your platform because it's bad for them, it's bad for the business, it's bad for the industry. The consumer's gonna continue getting into harm, it's gonna impact them and their families and so on.
that it's not sustainable for the business to have people who are obviously just gonna cause themselves problems and burn out. And it's not good for the industry's image from a regulatory or a public image point of view either. There's loads of different bad layers to this. So yeah, you need to, even after people have signed up for direct marketing, given their consent or whatever.
make sure that you are monitoring them as effectively as possible. And that is something that obviously we know the industry is taking a lot more seriously over recent years. I think that was even acknowledged in the initial high court ruling from last year. was a moment when the judges said, yeah, we know that the industry has upped their game a bit over the past few years in regards to this, but we just need to make sure we're taking that even more seriously, particularly given the...
Ted Orme-Claye (26:40.258)
the environment the UK industry finds itself in in 2026 with a lot of political scrutiny.
Charlie Horner (28:28.232)
Fantastic, well it certainly is a landmark case and something that we should take plenty of learnings from and Patrick Adelaide, really appreciate you taking the time out of your busy schedules to come and explain all of this to us. Ted, appreciate you joining us as well, thanks for your insights and expertise. Thanks to Optimove, to Wiggin LLC, to IMGL and to our audience for tuning in to...
today's episode of iGaming Daily. Come back tomorrow to keep up to date with all the latest global gambling news.