A recent case involving the betting company Betfred (Green v Petfre (Gibraltar) Ltd (t/a Betfred)  EWHC 842 (QB)) has ruled that terms and conditions seeking to exclude liability must be clear, precise and transparent, especially in contracts between traders and consumers. The lessons to be learned from this decision are not just relevant to the gaming industry but to all businesses who conclude consumer contracts online.
A player of the online game ‘Frankie Dettori’s Magic Seven’ won the jackpot three times in as many minutes, meaning he had recorded on screen £1,722,500.24 worth of betting chips as his winnings. Betfred refused to pay out as the ability to win the jackpot so often was due to a glitch in the system. They claimed that their terms and conditions allowed them to not pay out in such circumstances and excluded liability in the event of a malfunction.
The Court ruled that the wording of each of the clauses relied upon by the betting company was inadequate to exclude liability. Furthermore, the manner in which the relevant clauses were presented and the failure to adequately draw them to the players’ attention meant that the three purported exclusions, even if they had been effective to exclude liability, were not incorporated in the contract.
The judge was particularly critical of the “lawyerly” phrases in Betfred’s terms and conditions and the poor structure which did not sufficiently bring to the attention of players the intended exclusions. This was said to be the result of the combination of “inadequate signposting to … significant exclusions of liability, and the failure to highlight the meaning and effect intended.” Attention was also drawn to the “unhelpful, often iterative presentation in closely typed lower-case or numerous paragraphs of capital letters” which meant that the relevant clauses were buried in other materials.
These features were exacerbated by the fact that players had to click through and scroll numerous pages and search out what appeared to be relevant. Even then, it was quite unreasonable to expect the player would have found and noted the importance of the key clauses. Particularly in the context of an online betting contract, where a player would be “most unlikely to spend significant time trawling through documentation, especially if it is repetitive and not clearly relevant to him. The exclusion of or limitation to liability to pay in circumstances where play has continued over a number of hours and is ostensibly wholly valid, is something that would need to be achieved with great care and particularity.”
Although this clearly involved an unfortunate software glitch, Betfred would have saved themselves a lot of money and negative publicity by making some simple changes to the structure and wording of their terms. Given the ease with which documents or sections can be hyperlinked in electronic terms and conditions, there is no reason not to make the most of it to achieve a clear and streamlined document.