The ASA has upheld a complaint against a gambling affiliate whose paid-for search ad appeared when a consumer searched for “help with gambling”. Instead of finding support services, the consumer was served an ad for the ‘UK’s Top 10 Casino Sites’.

Smart Gravity Ltd, trading as top10onlinecasinoreviews.co.uk, did not offer gambling services itself. It operated as an affiliate, providing comparisons, reviews and information about operators licensed by the UK Gambling Commission. But as the ASA made clear, that distinction was no defence.

The ASA found the ad had been irresponsibly targeted and breached CAP Code 1.3 which requires that marketing communications are prepared with a sense of responsibility to consumers and society. The decision is significant as it focuses on the audience reached and the context of the search, not purely whether the advertiser itself offers gambling. It also serves to remind marketers of the importance of considering the range of targeting controls available to them to prevent the advertisement reaching the wrong audiences.

This decision follows a suite of recent ASA decisions targeting irresponsible gambling-related advertisements. In July this year, the ASA upheld a complaint against BoyleSports for an advertisement which encouraged frequent gambling behaviour that risked financial harm. In April, the ASA found Gecko Play’s humorous advertisement, which the ASA found made light of gambling, to be socially irresponsible.

Smart Gravity response

Smart Gravity said its campaigns were intended for adult UK consumers, using the advertising platform’s targeting controls. Its evidence included a negative keyword list designed to exclude searches linked to gambling addiction, safer gambling and gambling harm, as well as periodic reviews of campaign settings and targeting, search-term data analysis, and internal compliance monitoring. Smart Gravity accepted that automated systems could not guarantee that every keyword match would be blocked, but said the controls were reviewed regularly. It also stressed that it had no commercial interest in advertising to people seeking help with gambling-related harm.

ASA’s decision

The ASA declared a breach of CAP Code 1.3. It found that the keyword list and other targeting controls did not sufficiently protect vulnerable consumers.

While Smart Gravity did not directly provide gambling services, its ad did promote online casino and gambling sites. That meant the company still had to consider the risk of harm to vulnerable people. In the ASA’s view, stringent controls were needed.

The negative keyword list excluded some searches, but as Smart Gravity used a mix of broader keyword matching options, these excluded terms did not prevent the ad from appearing after broader searches linked to gambling harm. The ASA considered there was a strong likelihood that vulnerable consumers searching for “help with gambling” would see an ad comparing and providing information about casino websites. The targeting controls implemented had not been effective.

Smart Gravity had to ensure the ad was properly targeted and would not follow a search for “help with gambling” again.

CAP Code ruling

Notably, the ASA found that the advertisement breached CAP Code 1.3 which requires marketing communications to be prepared with a sense of responsibility to consumers and society. The ASA did not find there had been a breach of CAP Code 16.3.1 which is engaged when an advertisement portrays, condones or encourages gambling behaviour that is socially irresponsible or could lead to financial, social or emotional harm.

An ad promoting online casino sites with “Fast Signups” and “Mega Bonuses”, placed in front of vulnerable consumers, would likely be regarded as irresponsible and harmful. The gambling-specific provision may not have been cited because Smart Gravity did not offer gambling services directly; however, it shows the ASA’s continued willingness to use the full extent of the CAP Code to capture any forms of gambling advertising from affiliates.

Takeaways

The ASA is likely to examine the effect of an advertisement in context when deciding whether it promotes or encourages gambling, even if the advertiser does not provide the gambling services itself. If the audience may include people seeking help or trying to reduce their exposure to gambling, stringent safeguards are needed. The ad should be targeted so that it does not reach people who may be vulnerable to harm.

Negative keyword lists are useful, but exclusions need to be broad enough to capture related searches and concepts, not just exact phrases. For instance, vulnerable consumers may search for GamStop or GamCare, not only ‘help with gambling’. Targeting controls and live campaigns should be monitored and reviewed regularly. Marketers should take steps to address any sign that they are receiving engagement from vulnerable persons (such as feedback received from internet users) and should ensure that appropriate targeting decisions are made, with records of the decisions, and precautions taken to effect these decisions, being recorded and retained.

Particular attention should also be given to CAP’s guidance on age restricted ads online, which sets out the measures needed to minimise the risk of gambling ads being seen by vulnerable people. Furthermore, gambling operators should remember that an affiliate “going rogue” does not, in itself, absolve them of regulatory responsibility. In its 888 UK Ltd ruling, the ASA held the operator responsible as the beneficiary of misleading affiliate advertising, despite the material being published without its knowledge or approval and in breach of its agreement.

Separately, LCCP social responsibility code provision 1.1.2[1] means that, in practice, if an affiliate does something wrong, the operator will, in the eyes of the GB Gambling Commission (the “Commission”), be on the hook for it. Licensees must ensure they have the contractual right to promptly terminate their agreements with affiliates where any such affiliate breaches a relevant advertising code. The Commission has made it clear that operators are responsible for the actions (or omissions) of marketing affiliates with whom they partner, and must ensure such affiliates are meeting the relevant regulatory requirements, as if the operators were conducting the marketing activities themselves. While Smart Gravity wasn’t acting on behalf of any one operator, the recent ruling is nonetheless a timely reminder of the position the ASA will take in respect of gambling advertising, and the potential for affiliates to get it wrong.

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1. [1]The provision states: Licensees are responsible for the actions of third parties with whom they contract for the provision of any aspect of the licensee’s business related to the licensed activities.