David Clifton: Licensing Expert – Be mindful of protecting children

As I write this, we await the Government’s review of gaming machines and social responsibility measures that is due to be published later this month, according to comments by the Secretary of State when she appeared before the Digital, Culture, Media and Sport Committee on 11 October. She added that this would be followed by a full 12-week consultation that “will put forward a number of options on many different aspects of gambling”.

I wonder if there was a last-minute reappraisal of those options after a front page Sunday Times article was published on 8 October entitled “Cartoons lure kids to online gambling”,  alleging that children are being targeted by operators who use cartoon and storybook characters in both their “pay to play” and “play for free” online gambling games. 

Predictably, the Daily Mail was not slow to throw in its tuppence worth with articles entitled “Online bookies ‘use cartoons to target children’: Regulators investigate firms after they are accused of using characters to promote casino games” and “Gambling firms targeting children are just as wicked as drug pushers”.

 Although these stories have focused on online casino games, the repercussions could be equally damaging for online betting operators. The Gambling Commission has already sounded its warning. Tim Miller, its Executive Director for Corporate Affairs and Research wrote an open letter to the Editor of the Sunday Times the day after its article appeared, emphasising that the Commission will continue to take firm action where gambling businesses fail to protect vulnerable people, especially children.

He went on to refer to the Commission’s wide-ranging review of online gambling that commenced earlier this year and the ongoing examination by the Responsible Gambling Strategy Board of the wider relationship between children and gambling, commenting that “together these will give a clear picture of where further action may be necessary”.

These allegations will certainly have served to pour oil on already troubled waters following, as they do, concerns expressed by the Commission in November 2016 about findings in a research study amongst 11 – 15 year olds entitled ”Young people and gambling 2016” indicating that  450,000 children are gambling in England and Wales every week, of which about 9,000 are likely to be problem gamblers.

Then, in February this year, the Commission’s “Gambling participation 2016: behaviour, awareness and attitudes” report revealed that the most important gambling policy issue for the general public is having controls in place to ensure that children and young people are not exposed to gambling. This was followed a month later by a warning from the Commission to parents to be vigilant to the dangers and risks to their children of gambling associated with video games following the publication of its Virtual currencies, eSports and social casino gaming position paper.

Professor Mark Griffiths of Nottingham Trent University’s International Gaming Research Unit was quoted in one of the Daily Mail articles as saying: “Research has shown that when we look at those children who are problem gamblers, the No. 1 risk factor is playing online games for free. Children are getting access via their mobile phone to these games in a much easier way than even five years ago”.

The Industry Group for Responsible Gambling has very recently announced a number of enhancements to the Gambling Industry Code for Socially Responsible Advertising, the new (3rd) edition of which has just been published. It reinforces the LCCP requirements that:

  • “care must be taken not to exploit children and other vulnerable persons in relation to gambling activity; and
  • advertisements should not be specifically and intentionally targeted towards people under the age of 18 through the selection of media, style of presentation, content or context in which they appear. All advertisers and gambling operators should already be aware that it is an offence under Section 46 of the Gambling Act 2005 to invite a child or young person to gamble”,

and adds that “more generally, it is understood that the government intends, in co-operation with the industry and other stakeholders, to undertake further work to ensure that under-18s are suitably protected when using social media”.

Although existing guidance to the CAP and BCAP Codes emphasises the need for advertisers to ensure that they respect the need to protect children, young persons and other vulnerable persons from being harmed or exploited by advertising that features or promotes gambling, it may not be coincidental that on the day after the Sunday Times article was published, the ASA published an updated online advice note entitled Betting & Gaming: Appeal to Children.

That advice note refers to a series of ASA rulings that have determined principles that need to be followed to ensure that advertisements for gambling will not have particular appeal to children. They include the following:

  • the use of cartoons or cartoon-like imagery has the potential to appeal to under-18s, and it is therefore important that they are used carefully in ads for gambling products,
  • the inclusion of a popular comic book character is likely to have particular appeal to children and young people in breach of the Advertising Codes, regardless of the fact that it is unlikely to be viewed by many children,
  • gambling products should avoid names that are likely to appeal to under 18-year-olds, particularly if presented with colourful and exaggerated cartoon-like imagery, that is likely to strengthen that appeal and
  • while some ‘cartoon’-style graphics might be acceptable if they are adult in their execution, marketers run the risk of appealing to under-18s if they are too similar in their appearance to cartoons popular with children.

It also points out that where an ad features content that may appeal particularly to children but appears in a context that effectively excludes children from seeing it, that content may be considered acceptable. That was the effect of an ASA ruling in May this year finding that Ladbrokes had taken sufficient measures to send an ad featuring the Iron Man comic book character only to over-18s. Although the Iron Man theme in itself was considered likely to have particular appeal to children, the ad was only sent to the registered e-mail addresses of established customers who had been validated as being over 18. In relation to this ruling (that reversed a previous decision on the same facts), the ASA stated: “This exception to the rule that gambling ads must not include content that is of particular appeal to under 18s is unlikely to apply to media where the targeting information depends on unverified audience self-reporting, or where a sufficiently robust prohibition of under-18s is not in place. In such circumstance, the content appealing in particular to under-18s is still likely to breach the Code”.

With rising tides of public concern now seeming to drive gambling policy in Great Britain, it is quite possible that the Gambling Commission and/or the ASA may impose more rigorous regulatory requirements in the near future to further reinforce the licensing objective of “protecting children and other vulnerable persons from being harmed or exploited by gambling”.

However, all gambling operators should beware of complacency in the meantime, as it needs to be remembered that it is not just a question of observing the Advertising Codes. As the Gambling Industry Code for Socially Responsible Advertising reminds us, section 46 of the Gambling Act 2005 provides that a person commits an offence if he invites, causes or permits a child or young person to gamble. Intentionally sending a document advertising gambling to a child or young person is an invitation to the child or young person to gamble, as too is intentionally bringing the child or young person’s attention to information about gambling with a view to encouraging them to gamble.

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David Clifton

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