European Gaming Lawyer magazine Spring 2016 | Page 10
software include (1) the right to a repair
or replacement, (2) the right to a price
reduction, or (3) the right to a refund. The
quality rights and corresponding remedies
cannot be excluded and so all B2C suppliers
of digital content in the UK must ensure
that their consumer contracts and download
processes are reviewed for compliance.
In addition to confirming consumer
rights in respect of digital content, CRA
replaces and supplements existing UK
rules concerning unfair contract terms
in consumer contracts. Previously the
legislation could be found in two separate
pieces of legislation: the Unfair Terms in
Consumer Contracts Regulations 1999
and the Unfair Contract Terms CRA 1977,
and CRA consolidates this legislation and
applies to all terms in contracts between
suppliers and consumers whether negotiated
or not.
A consumer will now be bound only by
those contract terms that are fair, except
where such terms are ‘core terms’ (such as
the subject matter or price of the contract),
which are transparent, prominent and
bought to the consumer’s attention at the
point of sale. With regard to non-core terms,
in order to be enforceable they must not
cause an imbalance in the parties’ rights and
obligations, and definitely not if this is to the
detriment of the consumer. Helpfully, CRA
provides examples of terms that would be
deemed unfair to the consumer and these
include any clauses excluding or restricting
statutory rights and remedies or liability for
death or personal injury through negligence.
In addition to these ‘black-listed’ terms, Part
1 of Schedule 2 of CRA (known as the ‘grey
list’) details an abundance of clauses that
may be deemed unenforceable if they fail
the ‘fairness test’. In summary, a clause will
be deemed unfair if it:
1) is not in plain and intelligible language
(preventing the use of terms such as
consequential and indirect loss often
favoured by lawyers because consumers
are unlikely to understand their
implications); and
2) creates a significant imbalance
between the parties to the detriment of
the consumer.
If any clauses (including, for the avoidance
of doubt, ‘core terms’ if they are not deemed
10 | European Gaming Lawyer | Spring Issue | 2016
to be sufficiently transparent or prominent)
are found to be unfair they may be
unenforceable and open the supplier up to
potentially unforeseen liabilities.
This author can think of a variety of
terms frequently used in consumer facing
documents by the gambling industry
that may be deemed to be unfair under
this new regime, including the right of a
supplier to unilaterally void a bet in certain
circumstances, and the implementation
of CRA will have wide implications for all
B2C software providers, be they gamblingfocussed or otherwise.
Indeed, UK-licensed operators are
required by the LCCP to satisfy themselves
that their customer terms and conditions
are not unfair within the meaning of, and
comply with the terms of, the CRA.
3. General Data Protection Regulation
(GDPR)
As many will know, GDPR is the European
regulation that will replace the Data
Protection Directive, which was enacted
in the laws of member states across the
European Union at the end of the last
millennium. As a regulation, it will be
directly binding on data controllers in
all member stat \