Look past the “I’m a Celebrity” headline: what the Tombola decision really means for gambling advertising

Last Autumn, I posted a couple of times (here and here) about how some of the ASA’s upheld decisions around the targeting of ads to children, supplemented CAP’s guidance of August 2018, on Children and age-restricted ads online. This guidance suggested that advertisers would require robust audience measurement data to be supplemented with interest-based data when using media without stringent age-verification tools in place (i.e. apps and social media platforms), to secure against inappropriate targeting of ads.

From the ASA’s upheld decisions against Greentube Alderney Ltd and WHG (International) Ltd, operators learnt that serving gambling ads to users where the account was logged-in as over the age of 18 was not sufficient to satisfy the obligation to “take all reasonable steps to exclude under-age consumers from the targeted audience by using interest-based targeting tools“.

Separately, an upheld decision against Spotify demonstrated that even if the ad is not for an age-restricted product, if the media used to communicate the ad could be regarded as having “particular appeal to children” (regardless of the actual viewer demographic), it should be socially responsible with the ads it shows.

In this week’s decision against Tombola International plc, although the app was not of particular appeal to children per se (and it was unlikely that under-18s made up a disproportionately high percentage of the app users), the fact that some under-18s would, nevertheless, have downloaded the app was still relevant. Because it was likely that there were under-18s in the audience, Tombola needed to demonstrate that they had taken reasonable steps to ensure that their ad was directed at those aged 18 and over so as to minimise the under-18s’ exposure to it. Because there was no mechanism through which age-restricted ads could be targeted only to the appropriate age group, the ASA concluded that Tombola had not discharged its obligation to take all reasonable steps to direct their ad at the right audience and should not have used the app to deliver its gambling ads to consumers.

Given that that most apps can be downloaded by the under-18s (and even if there is a minimum age requirement, this is not a robust age-verification mechanism) this has the effect of ruling out mobile apps for gambling adverts, unless there are targeting tools which sufficiently exclude children and young persons from the audience. This will also apply to advertising on social media platforms – unless the operator can use interest-based targeting to partition the audience, the relevant media will not be appropriate.