The UK situation is somewhat unique, and only affects the casino industry because for the UK they have to operate with a separate UK license and under UK law. Before this, regular contract law applied, where is was a caveat emptor situation where the terms were what governed the contract. UK consumer law is a little different, and this difference is unique to contracts between a business and a consumer. Business to business contracts are still a caveat emptor situation, where both parties need to have their legal teams read and understand the terms to protect them from signing up to a disastrous one sided deal.
Business to consumer contracts are governed by a principle of fairness towards the "little man" with little access to expensive corporate lawyers to read, understand, and advise as to the meaning of the terms they are about to sign up to; whereas the business would have (presumably) used a well qualified legal team to produce a non negotiable contract designed to make a profit for the company at the expense of playing fair with the consumer.
It has come about because of a long history of one consumer rip off after another over many decades, and these laws have been designed to make things fairer for the consumer. These laws also evolve as dodgy businesses come up with new ways to rip off the consumer in the pursuit of profit that are not covered by an earlier set of consumer protection laws.
Bait & switch was one well used rip off tactic, until it was specifically outlawed in a list of specific types of consumer contract that were deemed unfair from the outset. Misleading advertising is another area where the online casino industry is getting itself into trouble with the ASA, but if the CMA gets hold of this, it's going to hurt far more than the "slap on the wrist, don't do it again" response normally seen from the ASA.
Under "Editors notes", some background is explained as to the scope of this investigation:-
The key pieces of consumer protection legislation relevant to the CMA’s investigation are the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and Part 2 of the Consumer Rights Act 2015 (CRA). The CPRs contain a general prohibition against unfair commercial practices and specific prohibitions against misleading actions, misleading omissions and aggressive commercial practices. Part 2 of the CRA aims to protect consumers against unfair contract terms and notices, and requires contract terms to be fair and transparent.
The CMA also states:-
The CMA has not at this stage made any finding on whether online gambling firms’ terms or practices have breached consumer protection law.
Currently, they are looking for specific instances where players, ADRs, and the UKGC feel there MIGHT be a breach of the law in the way a casino operator has dealt with a player.
As with the bank charges case, the outcome may well not be what many consumer groups expect. The CMA may well (quite sensibly) accept that it's necessary for "free bets" including bonus chips to be tied to the player having to play a certain amount, even if this means the player can't withdraw when they want to stop playing. They may just rule that the complexity of current terms needs to be wound back to something much simpler as was the case a decade ago where it was often a simple "all slots count, WR nn X bankroll", as opposed to todays convoluted lists of prohibited games, games that count less than 100%, games that can be played in some situations but not others, and additional terms limiting min, max bets, and having prohibited configurations such as must play max lines or must not place bonus side bet.
Under the law, it's unlawful for a business to "fine" a customer for a breach, they must levy a charge that has some connection to the actual loss suffered and the costs of detecting and dealing with the breach. Confiscating an arbitrary sum from the player's account is a "fine", not a remedy of a breach, which is where the "winnings are confiscated" term might be in trouble. The fact that casinos can "charge" one player £100 and another £20,000 for the same contract breach simply because this is the balance of their account is going to make it very hard indeed for the casinos to argue that this is not an arbitrary fine, but a retrieval of reasonable costs and losses due to the breach.
Ultimately, they say:-
As an enforcer under Part 8 of the Enterprise Act 2002 (EA02), the CMA can enforce the above legislation through the courts. Ultimately, only a court can decide whether a particular term or practice infringes the law.
So, in the end, it will be down to the courts, no matter what the result of the CMA investigation or it's recommendations. This would also be a remedy for the industry if they believe the CMA have gone too far and more or less made it impossible to offer online gambling to UK customers.
