A recent UK High Court judgment ruled in favor of a payment of £ 1.7million to one of Betfred’s online gaming customers following a software glitch that unintentionally increased the player’s chances. The case serves as a stark reminder to the gaming industry of the costly consequences of terms and conditions which are obscure, unclear and insufficiently brought to the attention of the player.
On January 26, 2018, Mr. Green spent five and a half hours playing a side bet feature in an online game called ‘Frankie Dettori’s Magic Seven Blackjack’ on the Betfred mobile casino app. At the end of his gaming session, the game showed Mr Green’s betting chips to be just over £ 1.7million.
On contacting customer service to withdraw his winnings, Mr. Green was informed by Betfred that due to the large amount at stake, additional verification would need to be made with the third party game provider, Playtech, before they could withdraw the funds. . Playtech subsequently informed Mr. Green that there had been a flaw in the development of the game, which meant that continuous play offered a much better chance for a player to win than expected. Therefore, Betfred refused to pay the winnings.
Mr Green filed a lawsuit, relying primarily on the violation of a clause in Betfred’s T & Cs which stipulated that players could withdraw funds from their account at any time as long as all payments had been confirmed. In its defense, Betfred argued that:
- the clause invoked by Mr. Green relating to the withdrawal of the sums paid into the account by the player, and do not withdrawal of chip balances;
- based on the various exclusions of liability contained in the Betfred terms and conditions, the Application EULA and the Specific Game Rules, default in play meant that Betfred was under no obligation to pay any winnings; and
- (in the absence of the above arguments), the contract between the parties was void on the grounds that the parties were acting on a mutual error during Mr. Green’s playing session.
The judge considered and ruled on three essential questions.
- Meaning: what did the exclusion clauses really mean?
The judge concluded that the wording of each of the exclusions of liability invoked was inadequate and not capable of covering the circumstances of the case. The clauses did not explicitly state that bets would be void in the event of an error (and therefore the obligation to pay out winnings would not arise). In addition, the clauses contained a reference to “dysfunction” without properly defining this term. In the absence of any other definition, the judge did not consider the fact that the game produced a series of unintentional odds (while it was running smoothly) to be tantamount to a malfunction.
- Incorporation of terms: Have the exclusion clauses been sufficiently brought to Mr. Green’s attention?
The judge concluded that:
- the material disclaimers on which Betfred sought to rely (and their intended meaning and effect) had not been properly brought to the attention of Mr. Green;
- the layout of the clauses (which were tightly typed in lowercase or in many uppercase paragraphs) meant that the relevant clauses were “buried” among other material; and
- it was unreasonable to expect players to spend a lot of time digging through repetitive documentation that may contain irrelevant wording in order to locate key terms.
Consequently, the alleged exclusions were not validly incorporated into the contract between the parties.
- Reliance: From a consumer law perspective, were the exclusion clauses enforceable?
The judge concluded that:
- the language used was obscure and unclear to the average, informed player;
- the wording was iterative, repetitive and contained typographical errors;
- the requirement for the player to consult a lawyer when in doubt as to meaning was an ineffective attempt to shift the onus of providing clear language and appropriate warning; and
- the obscurity of the language, the context of the contract and the failure to adequately mark out the exclusion clauses and explain their consequences to the actors were incompatible with the principle of fairness.
Therefore, the judge ruled that the terms relied on were neither transparent nor fair, which means that under the Consumer Rights Act 2015, Betfred was not entitled to invoke them.
Convenient take-out meals
There are a number of practical steps that gambling operators can take to avoid such situations in the future, as follows:
- regularly review your T & Cs and ensure that any onerous conditions (such as disclaimers) are clearly reported to the consumer in a direct and transparent manner;
- avoid the use of vague “catch-all” language and ensure that the scope and intended effect of any key term is clearly defined (with the use of appropriate defined terminology, where applicable);
- format the user’s T & Cs with legibility and intelligibility in mind – avoid excessively spaced / long paragraphs and use of obscure legal language; and
- take into account the path of the user involved in accessing and playing games and whether it is structured in such a way as to draw the user’s attention sufficiently to the key terms.