May 31, 2018

We all know that the protection of children and the vulnerable is a key driver for the ASA – and rightly so. In particular ASA focus for 2018 is whether the Codes ensure that children, young people and other vulnerable people are protected from harm or being exploited by advertising that features or promotes gambling. We have already received guidance from the ASA on responsibility and problem gambling and expect further gambling-specific guidance relating to the protection of children and young people at some point this year. Often, what precedes new guidance, are upheld adjudications that highlight the industry issues.

Yesterday, the ASA published two decisions in which online betting operators, Progress Play Limited and TGP Europe Ltd, had complaints upheld for breaching 16.3.12 of the CAP Code (amongst other rules) for adverts that were considered to be of “particular appeal to children”.

Given the press and media attention given to this topic in the Autumn of 2017, and the regulators’ letter (from CAP, the ASA, the Gambling Commission and the Remote Gambling Association) sent to operators as a result, the latest round of adjudications is either surprising or demonstrates quite how subjective the interpretation of this rule is.

The regulator’s letter did state that:

“the use of particular colours, cartoon and comic book images, animals, child- and youth-orientated references and names of games such as “Piggy Payout”, “Fluffy Favourites”, “Pirate Princess” and “Jack and the Beanstalk” are likely, alone or in combination, to enhance appeal to under 18s”,

so Progress Play’s use of animated images to advertise: “Fairytale Legends Red Riding Hood“, “Fairytale Legends Hansel and Gretel” and “Fairies Forest“, showing animated images of, amongst other things, pixies and fairies, is to my mind, like showing a red rag to a bull. If the ASA had called out Jack and the Beanstalk as having a strong appeal to those aged under-18, then are animated games based on Red Riding Hood and Hansel and Gretel any different? It seems obvious that if operators are offering these games online, they should be accessible only in the age-restricted parts of the website.

The TGP Europe decision is worth closer examination.

Whilst games such as “Feathered Frenzy Slot“, “Dragon’s Myth“, “Faeries Fortune“, “Castle Builder“, “Robyn” and “Santa Paws” were no longer available in unrestricted parts of the website, they were available in demo mode at the time of the complaint. The ASA concluded that they were all considered to be of particular appeal to children.

Whether or not you side with the ASA or the operators, both of which made arguments against their ads breaching the CAP Code, the ASA’s decision is final, so it would be wise for operators (and probably game developers) to take note of the ASA’s decision-making process in its conclusions on which of the ads in question were, or were not, of particular appeal to children. These are the relevant take-aways:

• cuddly and cute animals, which also resemble characters from films/TV programmes that are/were targeted at under-18s, are likely to appeal more strongly to the under-18s than the over 18s;
• animations which are intricate and/or lightly-coloured tones are likely to be less appealing to the under-18s than those exaggerated and brightly-coloured animations;
• animations which are highly stylised, where characters’ proportions are exaggerated, resemble animated characters from films/TV programmes that were particularly targeted at young children;
• avoid the use of young-looking characters;
• innocent-looking characters (even animals) are more likely to appear child-like and risk being of particular appeal to children;
• names of games can tip an ad which has universal appeal into an ad which appeals more strongly to those under-18s;
• just because characters which are of particular appeal to children, such as fairies, are made to look older doesn’t stop them appealing more strongly to those aged under-18; and
• to consider in the run up to next Christmas, generic images of a Christmas environment, even if animated, does not necessarily associate Santa Claus with today’s youth culture (and, in particular, the ASA accepted that Secret Santa is more associated with adults).

The other important point to note about these decisions is that both complaints were brought by Fairer Gambling, suggesting that there is at least one more organisation making complaints to the ASA as part of its campaigning and evidence gathering processes.