Marketing consents in the cross-promotion of gaming products to sports customers

As sport everywhere is at a standstill for the foreseeable future – everywhere, that is, except for the Belarusian Premier League – betting operators will be looking to the gaming side of the business to help manage the downturn in player activity.  There are a variety of ways in which an operator may try to drive traffic towards its casino offerings but it must always do so in a way which is legal and compliant. We will have a look below at the use of custom audiences tools on social media as well as re-visiting briefly some of the rules around direct marketing.

One marketing avenue that operators may wish to explore is the use of custom audience tools.  At its most basic, custom audiences work when a controller uploads personal data to a social media platform.  That platform will then present ads of the controller to those individuals on the platform – or it may present ads to other members on the social media site that the platform deems to be ‘similar’ to the uploaded data subjects.  This, in theory, would allow an operator to upload its entire sportsbook database to a social media site and request that its casino offerings were presented to those individuals when browsing that social media service.  Unfortunately, it is not quite that simple.  This type of sharing will involve processing of personal data and as such the operator, as controller, will need to ensure that it has appropriate lawful bases for the sharing, that its privacy notice clearly explains that this will happen, that there are objection / withdrawal mechanics, and it may also need to consider some form of written assessment to weigh up the risks.  These steps are particularly important as the standard terms on social media sites, at least those that we have seen, set out the social media provider as a processor and when the ads are presented, as I am sure you have also seen, there will likely be an option for users to check ‘why have I received this ad?’.  Clicking on this will spell out to the individual in black and white that the reason the ad is being shown is because the operator in question shared the person’s personal data.  This transparency by social media sites could be viewed as laudable, but it also clearly places liability on the party sharing the personal data in the first place.  All of this is not to say that it cannot be done, but that it should be done properly and lawfully in line with the steps set out above.  These steps will be particularly important as the risk of complaint is heightened due to the transparency around the origin of the ad.  And don’t forget, the ads shown.

At this challenging time for betting providers it is also worth quickly examining the rules around direct marketing.   Direct marketing received a lot of attention two years ago in the lead up to GDPR and many operators moved from ‘soft opt-in’ to consent when collecting marketing preferences.  ‘Soft opt-in’, rather misleadingly, is actually a form of opt-out.  It permits a controller to send marketing to a data subject when that data subject has purchased goods or services.  The caveats are that the marketing must relate to identical or similar goods and services, an opportunity to opt-out must have been provided at the time that personal data was collected, and an opportunity to opt-out is included in all subsequent correspondence.  Consent on the other hand is more straight forward and requires a user to opt-in to direct marketing.  Operators may wish to examine the language that they use – whether for ‘soft opt-in’ or consent – to understand what rights they are obtaining to send casino marketing to sportsbook customers or sportsbook marketing to casino customers.  Operators may also wish to amend their language or move from consent to ‘soft opt-in’ or vice versa, but in both cases it is important to be mindful that any changes will only apply to those new customers that sign-up.

Unfortunately, we don’t know of a magic solution or legal loophole to help convert sportsbook players into gaming players, but there may be value in exploring various marketing opportunities and hopefully the above will provide some idea of the sorts of legal issues that should be considered.

Stay safe and stay well.