Sky Bet Lodges Successful Appeal In Landmark Data Consent Case

Sky Betting & Gaming (SBG) has won an appeal against a High Court ruling over an alleged data collection breach. The original High Court verdict delivered by Justice Collins Rice last year deemed the claimant didn’t provide legal consent for the collection of personal information.

At the Court of Appeal, Lord Justice Warby perceived the matter differently, stating Rice’s decision was based on a “legally mistaken approach to the issue of what needs to be proved to establish that a data subject had given consent”. The matter, which is a significant development for betting controllers, will now return to the High Court.

How did we get here?

The claimant, known as RTM, a self-described problem gambler, took SBG to court, arguing he was sent direct marketing communications, based on SBG’s cookie placement and data collection. RTM purported he had never consented to receiving emails, and he went on to gamble with the operator between 2007 and 2019.

During this period, RTM accrued losses totalling £45,000. When the case was initially taken to the High Court, Justice Collins Rice opined “consent is subjective not objective”, and as RTM was a problem gambler, he wasn’t able to give legal consent.

In reaching its conclusion, the High Court noted it had created a new test for establishing valid consent under the UK General Data Protection Regulation (GDPR) and Privacy and Electronic Communications (PECR). Although the test consisted of three parts, the High Court determined only one of the two following conditions applied.

Indeed, the condition could be evidenced if the “data subject subjectively intended to give their consent” or “the choice by the data subject about consent was autonomous”. And the Information Commissioner intervened in the appeal on the issue of consent.

Nature of the appeal

Although the High Court in their 2005 ruling suggested SBG acted unlawfully in sending marketing material to RTM, SBG were quick to appeal. The SBG’s appeal against the judgment was based on five grounds, and the most important of these were:

• The High Court made a ruling on the matter that was not pleaded by the claimant, specifically the claimant had not argued that their consent was invalid due to a gambling disorder, and therefore SBG didn’t have an opportunity to present a defence to this matter.
• The High Court took the wrong legal approach on what amounts to legally valid consent.
• The High Court’s conclusion that the SBG didn’t obtain consent was incorrect.

Testing consent

The Court of Appeal dismissed the High Court’s suggestion that testing for consent contains any subjective element. Rather, the test for legally valid consent is a wholly objective one set out in UK GDPR.

As such, the judgment laid out by the Court of Appeal should give gambling controllers more clarity about obtaining consent. The onus, therefore, is on how operators use mechanisms in place to collect data.

An “important decision”

The Court of Appeal ruling was deemed a very “important decision” by SBG’s parent company, Flutter. A Flutter spokesperson said: “We are pleased to see the Court of Appeal has ruled in our favour. We take pride in our leading position on customer safety and remain absolutely committed to player protection.”

Meanwhile, Wiggin, the law firm representing SBG, welcomed the Court of Appeal’s decision. Adelaide Lopez, Wiggin’s Partner in Litigation, said:

“We are very pleased with the Court of Appeal’s decision in this remarkable case. Consistency in approach by the courts is important for the fair administration of justice and we’re pleased to see that the Court of Appeal has righted the ship.”