PLAYER CLAIMS
promotions of new games. The account was eventually closed by the operator in 2014 following information received from the customer that he was suffering from gambling abuse. In total, bets worth approx. EUR15 million were made between 2009-2014 which resulted in a net loss of approximately EUR700,000, including approximately EUR530,000 which took place during the VIP period. The ex-customer brought an action against the operator to reclaim his total losses both before and during the VIP period, and collect further damages related to his gambling abuse. The action was based on multiple legal grounds, but for the purposes of this article, the discussion will be limited to the points made on the operator’s alleged violations of RG requirements. The first and appellate court judgments In short, the Swedish Patent and Market Court, i.e. the court of first instance, dismissed the customer’s arguments in this part, finding that sufficient evidence had not been provided that the operator was indeed aware or could be presumed to be aware of the customer’s gambling issues, even though it had at the time been possible to monitor his gambling patterns. The case was appealed to the Patent and Market Court of Appeal. In a reversal of the original judgment, the Patent and Market Court of Appeal held that the VIP promotion manifested an awareness of the player’s gambling patterns, which in the Court’s view clearly deviated from “healthy gambling”. Considering the operator’s knowledge, the subsequent individualized marketing addressed to the player was considered intrusive given his vulnerable position and therefore constituted grounds to declare that all bets made during the following VIP period were void under a rarely applied statute in the Swedish Contracts Act. Briefly put, said statute, section 33, is a nullity ground prohibiting reliance on contracts in conflict with “faith and honor”. Historically, the statute has been applied in situations where one of the parties to the contract has deceitfully exploited a superior position to the detriment of the other party. In case law, taking advantage of elderly, and mentally weak people, or people in clear distress by pressuring them to enter into contracts have been subject to nullity under the relevant statute. Accordingly, the operator was ordered to reimburse the ex-player’s net losses attributable to the VIP period, i.e.
approximately EUR530,000, but not the net losses that occurred before the VIP appointment. The player was also awarded damages of SEK10,000 related to his physical suffering from the gambling abuse he incurred. Key takeaways from the appellate court judgment Aside from the many interesting points of contract law that the judgment presents, it also raises the critical question as to under what circumstances knowledge of problematic/ unhealthy gambling can be assumed of an operator. Applying the Appellate Court’s view, such knowledge may seemingly be evidenced by any sort of reaction from the operator, e.g. a customer promotion, relating to an objectively risk-indicative gambling pattern, even though such reaction does not express any insight that gambling abuse might be at hand. Arguably, it is thus not necessary to prove that an analysis, thorough or not, of the gambling pattern has been carried out. While such reading of the judgment would indeed be far-reaching for Swedish operators, this is essentially the finding of the Appellate Court. Considering that the action was dismissed in the parts that related to losses that preceded the VIP appointment, the Court’s findings do not establish any strict monitoring responsibility for operators at that time which could have entailed presumed knowledge of any gambling abuse. The Court’s conclusion is reasonable in this part considering that there were no statutory RG requirements prior to 1 January 2019. Another important takeaway concerns the type of operator actions that could trigger reimbursement liability once knowledge of a customer’s unhealthy gambling is evidenced, and ultimately, whether there was a duty to mitigate the situation even before the implementation of statutory RG obligations in 2019. Considering the weight placed by the Appellate Court on the ensuing, personalized marketing from the appointed customer managers in this case, it seems that a mere failure to take mitigating action would not have entailed reimbursement liability alone. Such a conclusion is also in line with the lack of statutory RG requirements in Sweden prior to 1 January 2019, although the absence of a duty to act at that time does not necessarily fully align with the legal concept of “faith and honor” under Swedish contract law. The Court’s reasoning does not discuss whether maintained generic marketing to a
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IMGL MAGAZINE | DECEMBER 2024
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