It is with a heavy heart and after long and careful consideration that ThePOGG.com has to announce that we have given notice to the UKGC that we will be resigning our position as an Alternative Dispute Resolution (ADR) service for the UK regulatory authority. This will be effective as of the end of June 2017.
This decision has come about after many months of communication with the UKGC with regard to the management of complaint cases that relate to fraud and the operation of multiple accounts under names other than the player’s own. We strongly disagree with the policies that the UKGC are pursuing in this regard and do not feel we can enforce them in good conscience.
It is our opinion that the current expectations on ADRs is likely to result in operators being far less willing to engage in open dialogue with regard to fraud related complaints, will educate those engaged in illegal practices as to how to avoid detection in future and will ultimately result in poorer bonus terms being available to genuine consumers.
The UKGC’s current position is that in all complaint cases ADRs should be sharing all evidence that contributes to a verdict with both parties to ensure compliance with the Gambling Act 2005’s core objective of “ensuring that gambling is conducted in a fair and open way”. While generally ThePOGG.com supports and approves of this policy, where a complaint relates to activity on the part of the complainant that is likely illegal, we feel that this policy is detrimental to both genuine consumers and the industry in general and conflicts with the Gambling Act 2005’s other core objective of “preventing gambling from being a source of crime or disorder, being associated with crime or disorder or being used to support crime”.
To detail the exact problems with a document that have resulted in the document being declined or to explain to a complainant how it has been identified that they are involved in the operation of multiple accounts is to give a road map to these individual as to how to avoid being detected in future. This is an outcome that all responsible parties should be looking to prevent.
We do understand and appreciate that the UKGC’s position is taken with the best of intentions and in an effort to ensure a complaint management service that is fair to all parties. Without question or hesitation we applaud this effort as we recognise that the online gambling industry sorely needs more bodies working to ensure players are treated fairly. However it is our opinion that this policy does not achieve this goal.
This type of activity damages all parties in the industry other than those engaged in practice that breach terms and conditions and are in most cases illegal:
- Operators sustain financial losses due to large numbers of player accounts claiming bonuses they are not entitled to and which offer none of the additional play that the average recreational player will by and large engage in.
- Regulators and mediators expend significant amounts of time investigating complaints where the complainant knows they have breached terms and conditions and are engaged in efforts to bully operators into paying balances they are not due or to discover how they were identified.
- Genuine players receive lower quality promotional offers as operators introduce more and more detrimental terms to try and discourage multi-accounting and prevent the losses that occur when they are targeted by groups engaged in this type of activity. This also has the inadvertent effect of resulting in more genuine players being caught out breaching terms they did not fully read.
ADRs serve as an alternative to civil court proceedings. We have been told that the UKGC feel that in any civil court case both parties would be given the full reasoning and justifications for the ruling and as such ADRs should look to hold to the same standards. However it has been widely acknowledged that ADR is not an appropriate format for the review of all cases. The Commercial Courts Working Party on ADR has stated:
“The Working Party believes that there are many cases within the range of Commercial Court work which do not lend themselves to ADR procedures. The most obvious kind is where the parties wish the court to determine issues of law or construction which may be essential to the future trading relations of the parties, as under an on-going long term contract, or where the issues are generally important for those participating in a particular trade or market. There may also be issues which involve allegations of fraud or other commercially disreputable conduct against an individual or group which most probably could not be successfully mediated.“
The above statement seems uniquely and specifically relevant to the decision regarding whether or not UKGC approved ADRs should be passing rulings on cases where the operator can provide significant evidence to indicate that the complainant is engaged in fraud. In our opinion this type of case should be deferred to the courts to preside over rather than requiring ADRs to distribute information that could conceivably be used to assist further fraudulent activity.
The opinion of the Commercial Courts Working Party on ADR is widely shared by other experts and authorities on the implementation of ADR as an alternative to litigation.
As the ADR process does not preclude a complainant engaging their statutory rights to have their case reviewed by a civil court, if a complainant genuinely feels that the ADR has either reached the wrong verdict or declined a valid case there are still options available to them. The ADR’s verdict is in no sense final. That being the case allowing ADRs to take sensible and reasonable steps to comply with the Gambling Act 2005’s core objective to “preventing gambling from being a source of crime or disorder, being associated with crime or disorder or being used to support crime” would prevent ADRs from educating those that based on the balance of probabilities are likely to be engaged in crime while still allowing recourse to the complainant if the ADR has made an erroneous judgement. The likelihood of those parties actually engaged in criminal activity being willing to take their case to court is significantly diminished compared to the likelihood that they will attempt to manipulate the ADR system.
With regard to the potentially conflicting core objectives of the Gambling Act 2005 (that being to “ensuring that gambling is conducted in a fair and open way” and “prevent gambling from being a source of crime or disorder, being associated with crime or disorder or being used to support crime”) it would be our opinion that while both “fair” and “open” are subjective terms that can be interpreted in different ways depending on the situation, the legal system in force in the UK strives to ensure that what constitutes a criminal activity is far more definitive in nature. Where an ADR can reasonably establish that criminal activity has likely taken place the ADR should not take any further action that supports that potential criminal activity. The definition of whether or not these actions actually are criminal has to be left to the criminal court system but no responsible ADR should take action that fosters or propagates activities that they have reasonable grounds to believe fall into the category of “criminal”. In this type of situation the interpretation of the phrase “fair and open” logically need to be assessed based on the specifics of the situation and an assessment of whether withholding supporting evidence in these cases would actually result in the complainant being treated “unfairly” given that sharing said evidence would not ultimately change the outcome of the complaint.
Unfortunately in our opinion the current ADR policies are protecting the wrong people. The most vulnerable complainants, those with problem gambling tendencies and complaints about the responsible gambling policies being employed by UK licensed operators, have up till now been deferred by default to the civil courts to resolve their issues (ADRs are currently prohibited from managing these cases), while those complainants that represent the highest risk of criminal behaviour are being inadvertently aided in the effort to ensure a transparent and accountable system. It should be acknowledged that the UKGC are now looking to make changes their approach to the management of self-exclusion issues with a mind to allowing ADRs to manage some of these cases but this only comes after thousands of self-exclusion complaints have been declined. To have left the most vulnerable complainants without recourse for so long stands in stark juxtaposition to the intransigence with which the UKGC have insisted ADRs provide information to highly suspect complainants that has the potential to enable future fraud.
We also have serious concerns related to the continued function of the ADR system with this policy in place. Based on professional experienced gained over years of working with a vast array of operators to resolve disputes, there is a significant subset of operators that are very reluctant to discuss complaints with 3rd parties. Generally speaking the larger the operator is the more resistant they will be to allowing any independent oversight. Even with our ADR credentials, and despite the UKGC’s intended goal that operators would work with any ADR the player approaches, it has been common place for operators to refuse to discuss dispute with us if we were not their chosen ADR. If operators feel that the security procedures they employ to detect and prevent fraud are likely to become common knowledge due to their engagement with ADRs it would be our concern that operators generally will become less enthusiastic participants within the ADR system and will start looking for strategies to allow them to avoid sharing evidence with ADRs. ADRs have already seen this type of activity in the form of SAR reports which prevent the operator or ADR sharing any evidence with the player that could alert the player to a potential ongoing police investigation. If operators start to more aggressively pursue strategies that prevent the discussion of complaints with ADRs this is likely to fundamentally degrade the service ADRs provide.
Neither can this be dismissed as a small issue. Since October 2016 almost 1 in 5 complaints that this service has received across our international complaint service have involved some type of player fraud. We are aware of at least 4 online communities, some with thousands of members, that are specifically targeting the UK market and where open discussion is engaged covering strategies to allow members to run multiple account under names other than their own without being detected. With organized and coordinated efforts amongst communities of this scale who look to use ADR services to manipulate the system in to forcing payment – or at least educating them as to how they were caught – there is significant potential for the ADR system to cease to be fair without well thought out policies that take account of the scale of this problem.
ThePOGG.com as an entity and myself personally have invested a great deal of time and effort to obtain ADR credentials with the UKGC, a feat that no other affiliate based dispute resolution service managed, and I cannot emphasize enough how saddened we are to step down. We were genuinely exceptionally proud to have our service recognised for the quality and integrity that we always strive to uphold. Had we seen any middle ground solution in this instance we would have pursued it but as ADR policies currently stand to continue to perform this role would require our service to take actions that we feel cannot be morally justified.
Every other significant body, regulatory of otherwise, within the online gambling industry that has dealt with of consumer complaints, many of whom have hands on experience dealing with large volumes of complaints over many years, have independently come to contrary policies to the ones now being pursued by the UKGC.
We would stress that from an internal perspective of working with the UKGC we have great respect for this body generally and feel that much of the work they are doing in relation to the ADR service and more generally across licensing provisions are strongly beneficial to both players and operators. They are working hard to improve the industry and we will continue to support their efforts where and when we can.
I would also state with absolute conviction that our experiences working with the UKGC have expanded my horizons personally, forcing me to go outside of my own comfort zone to assemble the information required for the arguments I’ve presented, and that while we are stepping away from being an ADR for the UKGC we do so as a better ADR overall for our experiences with them generally and specifically in relation to this issue.
We consider this policy to be a misjudged exception to our generally high opinion of the UKGC. As such we would encourage as many other parties involved in the industry, be they ADRs, other regulators, operators, affiliates or players to contact the Gambling Commission to provide their views on this strategy and in doing so allow the UKGC a larger body of opinion upon which to base any future policy decisions.
Duncan Garvie (Manager and ADR Official for ThePOGG.com)
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