DATA PROTECTION IN UK GAMBLING
or other purposes — now has clarity that the test is an objective one focused on the quality of the consenting mechanisms it designs and operates. From a data protection compliance perspective, the decision reinforces that the proper focus for controllers is on the design of robust, well- informed consent processes. A data controller that can show that it presented clear information, offered genuine choice and obtained an affirmative indication of consent should be able to demonstrate compliance. The judgment also endorses, albeit in passing, the analysis in Cooper that consent depends on 'the outward manifestation of consent by the data subject', providing further domestic authority on a point that had not previously been settled by the Court of Appeal in terms. For practitioners advising on data protection litigation more broadly, the decision offers a salutary reminder that innovative legal theories deployed by first-instance judges must still be grounded in the legislative language and established jurisprudence. The Court of Appeal's willingness to characterize the trial judge's
approach as 'novel' and 'elusive', and to reject it on both substantive and procedural grounds, underscores the importance of appellate vigilance.
What remains to be decided? The case is far from over. RTM retains claims that SBG's processing of his data was unfair and infringed other data protection principles – which is denied by SBG – and these remain to be resolved at the remitted trial. As Lord Justice Warby noted, even if SBG prevails on all the consent issues, RTM 'still has claims that SBG's processing of his data was unfair, and infringed other data protection principles, that remain to be resolved'. The remitted trial will therefore provide an important opportunity to test the limits of the fairness principle in the context of marketing to vulnerable consumers. Practitioners in both the gambling sector and the wider data protection field should watch this space closely.
ADELAIDE LOPEZ Partner, Wiggin LLP
For more information contact adelaide.lopez@wiggin.co.uk +44 7485 383 161
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