ACMA Cracks Down on Non-Compliance with National Self-Exclusion Register Requirements

The Australian Communications and Media Authority (ACMA) has recently taken enforcement action against Pointsbet for failing to comply with the requirements under the Interactive Gambling Act 2001 (Cth) (IGA) relating to Australia’s national self-exclusion register, BetStop. This article examines this enforcement action undertaken by the ACMA and the key takeaways for wagering operators.

Background 

Launched in August 2023, BetStop is Australia’s national self-exclusion register that allows individuals experiencing gambling harm to exclude themselves from all Australian wagering services. It forms part of the National Consumer Protection Framework for Online Wagering; a suite of consumer protection measures designed to reduce the harm of online wagering to Australian consumers. 

Under the IGA, once a person registers with BetStop, wagering service providers (WSPs) must:

• not provide wagering services to registered individuals;
• not send regulated electronic (i.e. promotional) messages to registered individuals; 
• close the account of an individual as soon as practicable after they become a registered individual; and 
• ensure that the account of an individual who ceases to be a registered individual before the closure of the account is not used in relation to the provision of wagering services.

The ACMA’s recent investigations in relation to PointsBet followed the receipt of complaints from consumers that PointsBet had failed to comply with certain of these obligations under the IGA. A summary of the ACMA’s investigation and key findings is outlined below. 

PointsBet Investigation and Findings 

The ACMA’s investigation into PointsBet commenced in February 2024 and related to a number of issues with PointsBet’s internal systems and processes which impacted its ability to comply with its BetStop-related obligations. More specifically:

• PointsBet had introduced an update to its systems on 6 September 2023 which affected its ability to accurately determine whether a current or prospective customer was a registered individual on BetStop. In practice, WSPs are required to send requests to the operator of BetStop to determine the registration status of a particular customer (current or prospective) and, if there is an issue with the data or information provided, an error message is sent to the WSP which must then be remedied and corrected by it so that the registration status of a customer can be accurately determined. In this case, the update to PointsBet’s system prevented it from being able to remediate these errors and accurately determine the registration status of its customers. This defect remained in place until it was corrected on 18 September 2023; and 
• PointsBet had a separate exclusion program in place with certain individuals which operated in addition to the BetStop register. There was an issue in PointsBet’s internal systems which meant that, where a person had an existing exclusion directly with PointsBet at the time when they registered with BetStop, PointsBet’s system would override the BetStop exclusion if the customer’s temporary exclusion with PointsBet ceased. This technical issue was present from the commencement of BetStop until the issue was fixed on 3 October 2023. 

The ACMA’s investigation in relation to PointsBet’s conduct was forensic. The ACMA examined thousands of messages sent by PointsBet to its customers (including, in particular, push notifications sent to customers across a variety of devices and messaging platforms) and found that PointsBet had sent 508 marketing messages to self-excluded individuals in August and September 2023. The investigation also found that PointsBet failed to close 228 accounts of registered individuals with no outstanding bets ‘as soon as practicable’ (which the ACMA considered to be 7 days), and it had also failed to close 7 accounts of registered individuals with outstanding bets after those bets had been resolved. Further, the ACMA found that PointsBet had failed to promote BetStop in 22,360 push notifications to customers by not including the minimum information required in each promotional message (which includes a reference to BetStop, a statement to the effect that BetStop is the national self-exclusion register and a hyperlink to the BetStop website). Importantly though, the ACMA did not find any evidence that registered individuals were able to place bets with PointsBet during this period.

As a result of the ACMA’s findings, PointsBet was required to provide the ACMA with a court-enforceable undertaking to audit its compliance framework, carry out further staff training, implement a BetStop compliance policy and to self-report on any future instances of non-compliance with the IGA. While PointsBet did not receive a monetary penalty for contravening the IGA, it was fined $500,800 for breaching spam legislation by sending over 800 messages with direct links to its wagering products without an unsubscribe function. 

Key Lessons for Wagering Operators 

In light of the ACMA’s investigation into PointsBet, wagering operators in Australia should ensure the following:

• Implement robust monitoring systems: establish regular, automated processes to check all prospective and active customer accounts against the BetStop register, including inactive accounts;
• Close registered individual accounts promptly: implement systems that are able to quickly close the accounts of registered individuals as soon as reasonably practicable (the ACMA noted that it would have been practicable for PointsBet to close such accounts within 7 days, but this period could be even shorter (e.g. 24 hours) in other circumstances); 
• Review marketing systems and procedures: ensure that all regulated electronic messages, including SMS, emails and, in particular, push notifications, are not sent to any registered individuals, contain the required BetStop promotional information and are otherwise in compliance with applicable spam laws and regulations; and
• Monitor system changes and updates: implement thorough testing and monitoring when updating internal technical systems that interact with BetStop (whilst the system upgrade only took 12 days for PointsBet to identify and remedy, the ACMA still found that it had engaged in a number of contraventions of the IGA during this period relating to its marketing messages).

Conclusion  

The ACMA’s enforcement action against PointsBet demonstrates its strict approach to compliance with the BetStop requirements under the IGA. ACMA Chair, Nerida O’Loughlin stated that there are ‘no excuses for gambling companies that fail to understand their legal obligations [under the IGA]’. In light of this, wagering operators in Australia must understand their compliance obligations under the IGA and implement robust policies, procedures and systems to ensure they are operating in compliance with them.