HomeInsightsNon-compliant ads: the ASA’s latest project and the possible implications for Commission enforcement

The ASA has launched two projects this week, one of which will be of particular interest to gambling operators. In looking at the ‘supplier pathway of online ads’ the ASA aims to better understand how those ads which breach the CAP Code are inappropriately targeted online. This not only furthers their commitment to protect vulnerable audiences, including children, but also brings greater transparency and broader accountability to online advertising regulation.

In what is now becoming a trend at the ASA, they are using technology to monitor for ads for age-restricted products, including gambling, on sites of particular interest to under-18s, looking to see if the ads are being directed at children and young people through the selection of media or the context in which they appear.

The ASA will identify the parties involved in the supplier pathway of these non-compliant ads, assessing the part played by the advertiser, the publisher and the intermediary companies that sit between them. They will then report the outcome of the projects later this year.

Of course it is not likely that better understanding the supplier pathway will mean a change in the liability of the gambling advertiser – it will still be the operator’s responsibility to comply. But it will be interesting to see if there are any changes to the selection of media rules or the assessment that the ASA makes when considering whether the gambling advertiser has used all of the targeting tools available to them. We assume that in the meantime though, there are going to be more potentially non-compliant ads under investigation without the need for consumer complaint.

Are there implications for Gambling Commission enforcement work?

There have been a number of well-documented enforcement actions against operators that resulted for what fell under the broad umbrella of “marketing breaches”. Most related public statements contain little, if any, real detail on what actually went wrong and, importantly, what the operator could have done to prevent the breach. In our experience of advising on such matters, there is almost always a third party supplier involved in one way or another; either because the operator has bought in a solution that failed or the operator is advertising within an environment that doesn’t operate in a way to mitigate against the risk gambling products are brought to the attention of children.

In such cases, the defence that an operator might plead, that it was not to blame, always falls on deaf ears. The Commission takes the view that absolute responsibility sits with the operator and the ASA’s latest initiative is not going to change that. However, it might help support an operator’s position that it really did do all it could to avoid the issue.

Where technical responsibility lies must become a factor in how the Commission determines the quantum of any penalty or, indeed, whether to issue a penalty at all. At the time of writing, the Commission’s consultation on financial penalties is still in flight. It lists many factors relevant to “seriousness” of a breach, which then inform the level of penalty. These include whether the breach was committed “recklessly” and whether it could actually have been prevented.

Notably, one of the circumstances where a penalty “will not normally be used” would be “if the breach, or possibility of a breach of a Licence condition, would not have been likely to be apparent to a diligent Licensee”. Applying this to previous casework in this area, it is difficult to see how this doesn’t become relevant where the operator uses an established, reputable third party solution that either fails or doesn’t operate as advertised. The Commission should therefore expect any output from the ASA on “where responsibility lies for inappropriately targeted adverts” to form a key part of an operator’s representations in future enforcement cases in this area.