HomeInsightsGambling Commission Consultation, January 2018 – advertising concerns

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Followers of the Front Runner will be well-informed about the regulatory turmoil that the remote industry is currently weathering. The CMA published various undertakings binding upon major players recently and operators are busy digesting the changes to systems and practices that these new obligations will demand. This blog will feature updates as to how these requirements unfold in practice.

One consequence of the CMA enquiry – and of wider regulatory concerns about industry standards – is the Consultation published by the Commission in relation to the ‘fair and open’ licensing objective set out in Section 1 of the 2005 Act. The Consultation ranges over a wide swathe of consumer care initiatives from consents to marketing through to concerns about the literacy of consumers who are required to digest extensive end-user terms and conditions.

One proposal that raises an acute concern however is the proposal that compliance with the ASA’s codes is strengthened from an ‘ordinary code’ provision to a ‘social responsibility code’ provision in the relevant parts of the LCCP. The Commission pulls no punches about why this is needed and explains that it is so that an operator’s breach of the ASA codes can be dealt with by the Commission using the ‘full range of our regulatory powers’[1]. The stimulus for the Commission wanting this increase in the regulatory burden is a combination of ‘…misleading marketing practices, deeply irresponsible advertisements….freely accessible game tiles (advertisements) of particular appeal to the under 18s’, all of which have resulted in a situation which is ‘…not acceptable and is damaging trust and confidence in the gambling industry’[2].

The reader will wonder why this proposal should be seen as problematic. After all, the Commission regulates everything else in relation to gambling, why not advertising too? Bringing everything under one roof might be seen as an efficient way to do things. In addition, everyone recognises that the advertising of player promotions has caused a sharp regulatory backlash that might not have happened had the ASA’s early adjudications in this area been backed up by the artillery of the Commission before the whole issue ballooned out of control and sparked a CMA enquiry. Much of the undertakings published by the CMA replicate the word or the spirit of the ASA’s and the Commission’s previous guidance on the matter.

The concern with the Commission’s proposal is that the ASA’s handling of advertisements which are not player promotions – what you might call ‘ordinary’ advertisements – are too inconsistent and subjective to be what public and administrative law might regard as a ‘reasonable’ decision-making process with the potential to put gambling operators in breach of their licence. Put another way, breach of the social responsibility code of the LCCP is a serious business and operators are entitled to expect a robust juridical process to precede any finding from any person that they are in breach of it. The Commission is right to demand higher standards but it is in everyone’s interest that these are enforced by processes that command respect on all sides.

One recent ASA adjudication highlights the issue. In the words of the ASA[3], a TV ad for Coral, seen on 16 April 2017, featured several stylised clips of footballers playing football, including successfully taking risks and out-manoeuvring and out-playing defending footballers, against the background of a dramatic soundtrack. The voice-over stated, “The beautiful game you can watch it or you can get involved in it with the latest Coral action. So are you a spectator or are you a player? You decide. Coral. Get in on the action.” Two complainants challenged whether the ad was harmful and irresponsible because they believed the voiceover implied only gamblers were true ‘players’ and that gambling was better than watching the sport.

Coral advanced what might strike the reader as the common-sense observation that “the voiceover was asking whether a viewer was interested in having a bet as well as watching the match; this impression was supported by the statement being followed by a specific featured bet, for example, “Liverpool to beat Everton & both teams to score 5/1”. The clearance experts at Clearcast, who are not in the business of taking risks with compliance, similarly stated that they “neither believed the ad encouraged the viewer to stop watching the sport and gamble instead, nor did they feel that this was implied. They believed the ad asked a question, whether the viewer was a spectator or a player, with the following screen being the offer. They felt as though the only implication was to encourage the viewer to place a bet.”

The reader will immediately assume that those two rebuttals would have put an end to the two vexatious complaints. In fact the opposite happened. The ASA upheld the complaints on the basis that the “overall tone of the ad implied that gambling was more exciting than being a spectator”. This conclusion was reached with the support of a castle in the air of subjective interpretations of what the words of the ad connoted to the ASA; for example – “we considered the emphasis given to the term “player” in the voice-over, which we understood was a colloquialism referring to a successful person, contributed to the overall impression that gambling could lead to personal success and enhance personal qualities”.

For what little it is worth, the writer would have had no hesitation (like, one assumes, the Coral regulatory team and the Clearcast experts) in clearing this ad for air. Whilst the ASA regime has no palpable teeth, the industry can afford to live with topsy-turvy decision-making of this nature. However, if a decision based on such subjective grounds might in future have the effect of putting an operator in breach of its licence and at the wrong end of the ‘full range’ of the Commission’s regulatory powers then the industry is entitled to expect a far better process. Is any business happy to face a fine, suspension or revocation of its licence where an unremarkable choice of words, approved by the relevant experts, might been seen as giving rise to an ’emphasis’ which ‘contributed’ to an ‘overall impression’? Whose overall impression? What degree of contribution?

The industry isn’t entitled to an easy ride when it comes to advertising but it is entitled to regulation which is clear, coherent, capable of being implemented with a reasonable degree of certainty and which is enforced in a sensible objective manner. A good starting point for operators – for example – might be to respond to this part of the Consultation with the suggestion that a Clearcast clearance be deemed to represent compliance with the ASA codes for the purposes of the LCCP. If Clearcast are happy with your commercial copy, what more can you do? They are the experts! For non-television advertising, the Commission could reasonably be asked to afford credit to an operator who had taken expert advice in advance, for example from the ASA’s own copy advice helpline or from appropriate advisers. In all cases, the Commission should be the ultimate arbiter of compliance or non-compliance in accordance with its stated enforcement policies, not the ASA. However it may be, the ASA’s regime cannot be accepted as adequate to put an operator in breach of its gambling licence. This is the worrying implication of remark in the Consultation[4] that the ‘overarching framework for advertising regulation’ will not change and that the ASA will remain the ‘lead regulator’ and operators should consider their responses in the light of their previous experience of ASA regulation.

[1] Consultation, para. 2.3

[2] Para. 2.7

[3] https://www.asa.org.uk/rulings/coral-interactive–gibraltar–ltd-a17-1.html, accessed 05.02.18

[4] Para. 2.8