UK Court of Appeal Overturns Ruling on Flutter’s Problem Gambler Data Case

Sky Betting and Gaming has won a major data protection appeal after it was established that the High Court wrongfully voided a problem gambler’s consent to marketing due to his addiction.

The case centred on whether the operator acted unlawfully by using cookies, tracking personal data and sending targeted marketing to an anonymised customer known as RTM. The High Court had previously ruled in favour of RTM, finding that his gambling addiction invalidated his consent. This decision has now been overturned. 

In a judgment delivered on 21 April, the Court of Appeal allowed the appeal on all five grounds, reshaping how consent is interpreted under UK data protection law.

Court rejects subjective interpretation of consent

The central issue was if consent should be judged based on an individual’s internal state of mind. The Court of Appeal rejected that approach, ruling that consent is determined by observable actions rather than thoughts.

Lord Justice Warby, delivering the lead judgment, said the earlier ruling relied on a flawed legal framework. He stated the conclusion was “wrong because of a legally mistaken approach to the issue of what needs to be proved to establish that the data subject ‘gave consent’ with the specified characteristics.”

He added: “To prove consent, the data controller does not have to prove what was actually in the mind of the individual data subject at the time of the ‘indication’. It is neither necessary nor relevant for this purpose to explore whether the individual data subject was vulnerable, with an impaired ability to make fully autonomous decisions.”

Background highlights dispute over marketing practices

The case stems from RTM’s activity on the platform over a two-year period ending in early 2019. He later brought a claim alleging that cookie placement, targeted marketing and data tracking contributed to financial loss and distress.

The High Court had accepted that argument, with Mrs Justice Collins Rice finding that RTM had “lacked subjective consent” and “the autonomous quality of his consenting behaviour was impaired to a real degree” due to gambling addiction. Her ruling introduced a three-part test examining both his decision making and mental state.

The Court of Appeal rejected that framework entirely, stating that personal vulnerability cannot form part of the legal test for consent. It also dismissed arguments from the Information Commissioner’s Office, which had suggested that operator awareness of vulnerability should still be considered. Judges found that introducing such a factor would create unworkable uncertainty for businesses.

Case returns to High Court on remaining issues

Sky Betting and Gaming also succeeded on additional grounds related to cookies, customer profiling and factual findings on consent. The appeal court found that the original case had been decided partly on arguments not raised during the trial.

The matter now returns to the High Court, where RTM’s remaining claims around fair data handling are still under review. 

A High Court ruling has been reversed after Sky Betting and Gaming appealed the decision. The plaintiff known as RTM claimed the company took advantage of his problem gambling through targeted marketing. However, the operator has been exonerated after reviewing the UK data protection laws.