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Non Disclosure Agreements

Gerald Gouriet QC

The Gambling Commission has expressed concern that some licensees have been including non-disclosure clauses within settlement agreements with consumers (“NDAs”). In a strongly-worded warning (published on 31 January 2019) the Commission states that NDAs may have had the effect of preventing those consumers from reporting regulatory concerns. In some cases the NDAs have explicitly prevented customers from contacting the Commission itself.

In a section headed “Our expectations” the Commission sets out what it considers would be an improper use of NDAs:

“We consider that non-disclosure clauses would be improperly used if their effect was to:

  • prevent, impede or deter, a person from:
    • reporting misconduct, or a breach of our regulatory requirements to us, or making an equivalent report to any other body responsible for supervising or regulating the matters in question
    • making a protected disclosure under the Public Interest Disclosure Act 1998
    • reporting an offence to a law enforcement agency
    • co-operating with a criminal investigation or prosecution
    • seeking treatment for problem gambling and discussing their gambling history with treatment providers
  • influence the substance of such a report, disclosure or co-operation.”

The Commission states that NDAs “… or other settlement terms must not stipulate, and the person expected to agree the settlement agreement must not be given the impression, that reporting or disclosure as set out above is prohibited.” 

The Commission adds, that for avoidance of doubt:

  • the above expectations apply to any clause which purports to restrict disclosure to third parties, and not just clauses which specifically name the Gambling Commission
  • compliance with the above expectation will not be achieved by including an exemption clause in the settlement agreement which states that a customer may report the matter to a regulator if they are required to do so.

The warning concludes with the wry observations that “If a customer in the course of negotiating a settlement agreement states that they intend to report a matter to the Commission, we expect licensees will normally be able to inform the customer that they have already self-reported the incident. In appropriate cases the licensee may also have made a suspicious activity report and informed us of this, in accordance with paragraph 24 of Licence Condition 15.2.1.”

Gambling Commission Industry Warning