Svenska Spel Sport & Casino AB has successfully challenged a SEK 100m penalty fee (approximately £7.7m) from the country’s gambling authority, Spelinspektionen, for duty of care failures.
The decision was issued by Sweden’s Administrative Court in Linköping and led to the operator calling for “greater clarity” when it comes to the regulator’s duty of care interpretation.
The court emphasised that it disagreed with the assessment of Spelinspektionen based on the “legality principle”, which states that an authority may only take measures that are supported by the legal order and that it must be “sufficiently clear” what individuals must do to avoid a penalty.
Duty of care penalty
In March 2024, a warning and a penalty fee were issued to Svenska Spel by Spelinspektionen following an audit of the operator in 2021, in which the authority says the operator did not fulfil its obligations under Chapter 14, Section 1 of the Gambling Act, the supervision of duty of care.
Spelinspektionen blamed Svenska Spel for not working actively or proactively enough to protect ten customers who showed signs of potential gambling harm between 17 October and 17 December 2021, issuing a warning and a penalty fee of SEK 100m as a result.
In its appeal to the Administrative Court in Linköping, Svenska Spel argued that it did meet the requirements of Chapter 14, Section 1 of the Gambling Act, stating that it continuously monitors its customers’ gambling behaviour and has taken action to help players reduce their gambling when necessary.
The operator also claimed that since there’s nothing within the constitution that states which measures should be taken and when, its own measures should therefore “be considered sufficient when examining whether there were grounds for intervention”.
Administrative Court sides with Svenska Spel
In response, the Administrative Court has sided with Svenska Spel by taking a “legality principle” approach, stating that the authority can only take measures supported by legal order and that it must be “sufficiently clear” what must be done by individuals to avoid a penalty.
The court also highlighted the customer behaviour monitoring action undertaken by the operator.
“The court believes that the fact that the customers made large losses is primarily evidence that they have been gambling excessively. At the same time, the court notes that before, during and after the period covered by the supervision, Svenska Spel has taken several gambling liability measures against the ten customers, including certain access limitations and restrictions.”
The Administrative Court noted that while it understands Spelinspektionen’s perspective on querying if Svenska Spel took sufficient and quick enough measures to protect players from gambling harm, at the time of supervision, there were “no concrete rules and practices for licensees to follow” regarding which measures and when they should be taken to fulfil the duty of care.
“The assessment of whether it is right to intervene with a warning and a penalty fee must therefore be characterised by restrictiveness in order to be compatible with the principle of legality.
“The Administrative Court’s overall assessment is that it has not been shown that Svenska Spel has failed in its duty of care under Chapter 14, Section 1 of the Gambling Act in such a way that it constitutes grounds for intervention under Chapter 18, Section 12 of the Gambling Act. The Court has therefore decided to overturn the Gambling Authority’s decision.”
The Administrative Court’s judgment can be appealed to the Court of Appeal in Jönköping.
‘Greater clarity’
Svenska Spel has stated that it is pleased with the Administrative Court’s decision and has also called for clarification regarding the interpretation of the duty of care.
“It is gratifying that the Administrative Court upholds our appeal and overturns the decision of the Swedish Gambling Authority,” commented Fredrik Wastenson, CEO and Business Area Manager at Svenska Spel Sport & Casino AB.
“We appealed because we believe that the penalty fee is disproportionate in relation to the shortcomings and because there is a need to create greater clarity in the interpretation of the duty of care. We believe that the authority may only take measures that are supported by the legal order, the so-called principle of legality, which the court has also stated.”
