Sky Betting and Gaming (SBG) has secured an appeal against a 2025 High Court ruling concerning marketing material sent to a self-described problem gambler.
A Court of Appeal, presided over by Lord Justice Warby, determined that the January 2025 High Court decision by Justice Collins Rice was based on a ‘legally mistaken approach to the issue of what needs to be proved to establish that a data subject had ‘given consent’.”
The High Court case, RTM v Bonne Terre Limited & Anor, concluded last year with Justice Rice determining that the claimant, known as RTM, had not ‘given legally operative consent’ to collection of personal data.
RTM’s was subsequently sent direct marketing communications based on SBG cookie placement and data collection. RTM then gambled and lost money on the SBG’s platform between 2007-2019, with a loss of £45,000 disclosed last year.
SBG made its intention clear to appeal immediately after the decision, and subsequently appealed on five different counts. During the process, the Information Commissioner’s Office (ICO) intervened to assist the court on the matter of data collection consent.
Debating data consent
The company’s main contention was with Justice Rice’s contention that “consent is subjective not objective”, and that RTM could not have given consent because they were a problem gambler.
In Justice Warby’s assessment of UK GDPR law, a data controller such as SBG must show that a data subject (RTM) made an ‘indication’ of their wishes regarding data processing for the purposes of direct marketing.
This indication is based on the ‘objective’ criteria of the consent being freely given, specific, informed and unambiguous by the user.
“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”,” the court’s decision read.
“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.”
The ruling essentially determined that SBG could not have known that RTM’s problem gambling may have affected their decision to allow consent at the time.
With SBG’s five appeals approved, the case will now be returned to the High Court.
“This is an important and sensible judgment,” said Patrick Rennie, Partner and Head of Data Protection at Wiggin LLP, the law firm representing SBG in the appeal.
“Controllers need to understand what data protection law requires of them and how to comply with it. The original judgment left controllers, particularly operators, in an impossible situation akin to strict liability.
“The Court of Appeal’s decision brings greater clarity, allowing controllers to focus on delivering services in a compliant and confident way.”
SBC News has reached out to Flutter Entertainment / Sky Betting and Gaming for comment.