David Clifton: Licensing Expert – What to do if you received “that letter”…

David Clifton

In my recent SBC News article Be mindful of protecting children”, I commented on the Sunday Times article entitled Cartoons lure kids to online gambling”,  published on 8 October.

I had no knowledge that at the same time I was writing that, the Gambling Commission had joined forces with the Committee of Advertising Practice, the Advertising Standards Authority and the Remote Gambling Association to collectively write a letter on the same subject to online gambling operators. Their letter was sent out on Friday last week. In it, they “advise” gambling operators that they “must” immediately amend or remove any ads on their website or in third-party media space that are likely to appeal particularly under 18s.

The Sunday Times was quick to claim this action as a victory for its journalism adding that. without its investigation into the gambling industry’s use of child-friendly images, “the appropriate authorities would not have taken these steps”.

Whether it is justified in claiming such a victory is questionable. What it certainly has done is open up for debate the question whether those authorities should have done more to tackle this issue earlier.

One of the three licensing objectives under the Gambling Act 2005 is “protecting children and other vulnerable persons from being harmed or exploited by gambling”. That same Act describes promotion of the licensing objectives as the principal function of the Gambling Commission.

The need to prevent under-age gambling is underlined in the Commission’s Statement of Principles for Licensing and Regulation and is further emphasised by social responsibility code provisions 3.1.1 and 3.2.11 within its LCCP.

In addition, ordinary code provision 5.1.6 specifically states that licensees should comply with the advertising codes of practice”, namely the CAP and BCAP codes and the Gambling Industry Code for Socially Responsible Advertising. 

The rules are therefore already there. The letter received by operators on Friday does not really say anything new.

Page 6 of the CAP’s Guidance to the CAP and BCAP Codes has for some considerable time warned that “an advertisement featuring a character that particularly appeals to children is likely to fall foul of the rules. Marketers should be mindful that the use of cartoons or licensed characters, such as superheroes and celebrities popular with children, must be used with a due sense of responsibility. In other words, advertisers should take care when using cartoon-like images; they might be acceptable if they are adult in nature but marketers run the risk of appealing to under-18s if cartoon images are too childish in their execution, and that might be a problem when advertising gambling products. However, the ASA will consider whether advertisers have taken reasonable steps to prevent under-18s from viewing ads (for example age-gating of online ads) and the likely age of the audience viewing the ad”.

Perhaps what the letter does underline is that the ASA and the CAP Compliance team will start to use the sanctions available to them, including referring licence holders to the Gambling Commission (or Ofcom) as they have committed to doing “should there be serious or repeated breaches of the Ad Codes”. The recent £7.8 million penalty imposed by the Commission on 888 for significant flaws in its social responsibility processes should itself serve to spur operators’ compliance teams into action.

So what should recipients of Friday’s letter be doing?

  1. They should read it very carefully and follow all of the hyperlinks and read what is said there.
  2. They should read and make sure they understand the ASA rulings accessible via the links on the penultimate page of the letter.
  3. They should absorb all that is said in the ASA’s updated online advice note entitled Betting & Gaming: Appeal to Children to which I referred in my recent article.
  4. They should be establishing which of their advertisements are generally available to anyone to view (which is what is meant by the phrase “freely accessible” in Friday’s letter), whether the ads are referring to a play-for-money or a play-for-free game and whether on their own website or in third party media.
  5. Bearing in mind all that is said in the advertising codes, they should be assessing whether any particular ad has “particular appeal” to children, which according to a December 2015 ASA ruling, depends on the test of whether its content appeals more strongly to under-18s than to over-18s. although that may be putting it too simplistically.
  6. If an ad does feature content that has a particular appeal to children, they should consider whether it appears in a context that effectively excludes children from seeing it and, if it doesn’t, they should be removing it and then considering whether they can bring it within the limited exception referred to in a May 2017 ASA ruling but they should bear in mind that the ASA subsequently said: “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”.
  7. If they are in any doubt at all, they should be amending or removing the ad and considering what can be done to bring it within the rules. As Friday’s letter says, it is open to them to have a discussion with the CAP Copy Advice team. However, if doubt persists, they should also contemplate taking appropriate specialist legal advice

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David Clifton – dc@cliftondavies.com

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