The burden of proof: should we be regulating for the few or the many?

Let’s face it, gambling is without doubt a contentious and, for many, a morally questionable activity. Add to that the fact that morality goes hand in hand with politics. Supplement with a media wanting to lead but also desperate to appeal to public opinion, then it is little wonder that the gambling industry in many jurisdictions is caught in a perfect storm.

Add in online and particularly social media, which is not a rational debating forum, but a way of amplifying the arguments of those with a common cause. Fair trial by fully testing the empirical evidence and wider context is then rendered superfluous. Sentence is often pronounced by the court of minority public opinion.

No one would generally argue that the supply of gambling services to the public should be an unregulated activity, but we appear to be in a cycle of increasing regulation driven by the constituent elements detailed above. That in itself could have harmful consequences in terms of driving customers to unregulated markets.

The Covid-19 crisis and lockdown has served to amplify the debate around online gambling and we have seen what can only be described as a visceral, as opposed to an evidence-based response from external stakeholders: campaigners, some politicians and public health advocates.

Gambling revenues, primarily because of the closure of land-based venues, are universally down. In online, there has been moderate product shift to gaming, slots and poker as a substitute for sports betting. We have also seen a natural boost for virtual betting and esports. However, this has not rescued lost sports betting revenues.

Still though, we have seen the ramping up of calls for further ‘temporary’ – but unlikely to be reversed – restrictions on online gambling, despite the industry appearing to act with self-awareness. There has undoubtedly been an escalation in the battle to control the gambling narrative as the industry steps up its effectiveness in the public affairs and public relations spheres.

In the UK, online polling has shown that, generally, only a proportion of the most engaged gamblers (themselves a small minority) have increased gambling spend, but this was cited as a clear foundation for increased controls on all gamblers; without doubt regulating for the few, not the many. There was a greater proportion of leisure gamblers who had reduced spend.

Lived experience

We have also seen increasing reliance, in terms of campaigning and now policy making, on those with ‘lived experience’.  Problem gambling is a scourge and it is right that problem gamblers and those recovering from the condition have a seat at the discussion table. Regulators need to understand these experiences.

However, the question remains as to what weight should be given to the views of those with lived experience. Does lived experience make you an ‘expert’; with those experiences ranking above wider empirical evidence relating to all gamblers? Are all those individuals balanced in their wider views on the activities and culture of the gambling industry?

There are undoubtedly some fine harm reduction and educational charities in this space led by individuals who, but for problem gambling experiences, would have led blameless lives and who have re-established their integrity and more! These are people who generally have a fair and balanced view.

That said, social media remains an outlet for those who vociferously condemn the industry and call for a restrictive or prohibitionist approach that is, when you read between the lines, all about them reinventing their profile and, to an extent, their back story. A pinch of salt may need to be applied to some lived experience.

In many respects, the former adversarial battle with the industry in terms of winning or losing money then continues as an adversarial battle about the rights and wrongs of gambling or particular products. Gambling is still an obsession but in a different and not necessarily healthy way.

A political contact in the UK once told me that while politicians talk about evidence-based policy making, they are only human and are persuaded and driven more by emotion.

“You can come to me with as many spreadsheets and graphs as you like providing evidence that there has been no rise in problem gambling, but if I have just had a meeting with a group of individuals whose lives have been blighted by gambling, where does the balance of persuasion lie?”

Emotion and gut instinct establish fundamental belief principles and evidence that do not support these principles is disregarded. That is the challenge for the gambling industry, and I think it is starting to understand that.

Equally, the challenge for regulators is not to take the emotional line of least resistance and to regulate in the wider public interest; not just for the few.​

Andrew Lyman is the Gibraltar Gambling Commissioner and executive director of the Gibraltar Gambling Division. After a law enforcement career, he became a regulatory lawyer and was part of the senior management team responsible for formation of the UK Gambling Commission. Before returning to the public sector in Gibraltar, he spent a decade in public affairs and regulatory roles in the gambling industry.