This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
One of the biggest issues for gambling operators seeking to advertise their products is ensuring that they have considered all relevant legislation and regulations that apply. Whilst the new legislation seeks to impose a more straightforward approach and liberalise the regulation of advertising gambling products and services, it has also led to some new complications.
Back in March the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP) published new rules on advertising gambling in broadcast and non-broadcast media. Since then, there has been the publication of the Government's white list, the publication of the industry's own Gambling Industry Code for Socially Responsible Advertising and the publication of the Gambling Commission's "Gambling Advertisements and Impact on Responsible Gambling: Responses" document. The effect of these publications will be felt from tomorrow.
DCMS White List
The Department for Culture, Media and Sport finally published its much-awaited white list. This did not present any particular surprises, with the Isle of Man and Alderney being the only two jurisdictions to make it. The list will become law on 1 September 2007 by virtue of the Gambling Act 2005 (Advertising of Foreign Gambling) Regulations 2007.
The significance of this list is that it is an offence under the Gambling Act 2005 to advertise gambling which takes place in, or is not subject to the laws of an EEA State, Gibraltar or the white-listed jurisdictions. This means that, from tomorrow, operators based in jurisdictions such as Kahnawake, Costa Rica and the Netherlands Antilles will not be permitted to advertise in the UK.
It is also worth reiterating that those involved in advertising other parties' products and services, such as broadcasting companies, ISPs and advertising companies will need to take more care over who they take advertisements from in order to avoid committing an offence themselves under the legislation. The width of the relevant offence means that it will not just apply to the operators themselves and, as any such operators are not going to be based in the UK anyway, it is likely that such third parties will be at risk of prosecution.
One other interesting jurisdictional issue that has arisen in connection with the new advertising regime is the position of Northern Ireland. Whilst section 9 of the Betting and Gaming Duties Act 1981 (which prohibited overseas bookmakers from advertising in the UK) is being repealed, Northern Ireland has retained its own restrictions on advertising gaming. This has received some press attention recently, bearing in mind the effect this will have on the ability of broadcasters and operators to run national campaigns.
Gambling Industry Code for Socially Responsible Advertising
The industry has published its own code on advertising, in relation to which both the DCMS, the Gambling Commission and RIGT are reported to have had input. The code is intended to apply to all gambling advertising in Great Britain.
In light of the findings of the Commission document (primarily that there was a lack of evidence to support its concerns (please see below)), some of the contents of this code were a little surprising. The ASA had already conducted detailed consultations and published its own revised codes and the new legislation was so close to coming into force at the time at which this code was published. Having said that, after press reports of a Government change-of-heart on the issue of advertising gambling, there is something to be said for the industry taking a responsible approach, setting such guidance itself and promising to abide by it, rather than leaving the issue sufficiently open to enable members of Government to push for an even bigger u-turn.
The key points addressed under the industry code are the introduction of a 9pm watershed on gambling advertisements and programme sponsorship, the inclusion of messages in advertising and a ban on sponsorship on children's replica shirts for all contracts after 1 September 2007.
In relation to the watershed, it is worth noting that this will not apply to sponsorship and advertising of betting companies around sporting events – it seems that there has been a recognition of the close link between sporting events and gambling (most notably horse-racing, but also football and other sports). Also, this rule does not apply to bingo, pools and National Lottery which were permitted to advertise before 9pm before and may continue to do so.
In relation to the inclusion of messages in advertising, the gamblingaware.co.uk address should be carried on all advertising produced from 1 September where is it feasible and practical to do so. The Code also gives examples of educational messaging that operators may wish to include. The Code will be reviewed on a six-monthly basis.
Finally, it is worth reiterating that the ban on gambling logos appearing on children's replica shirts only applies to contracts that are signed after 1 September 2007. The position being adopted by the industry on this issue reflects the new approach taken to advertising on children's replica shirts being adopted by the drinks industry.
Gambling Advertisements and Impact on Responsible Gambling: Responses
The issuing of the industry code followed the publication of the Gambling Commission's "Gambling Advertisements and Impact on Responsible Gambling: Responses" document. This followed a Gambling Commission consultation in January 2007, which focused on a number of additional issues on advertising and social responsibility that the Commission did not feel had been adequately addressed in the new version of the CAP and BCAP Codes.
The key matters addressed in the consultation and the subsequent responses document were as follows: whether social responsibility messages should be included within advertisements, whether a statement about licensed status should be included within advertisements and whether any action should be taken in respect of sponsorship by gambling companies on children's replica shirts.
Messages Within Advertising
From a review of the Commission's document it is clear that the majority of the respondents were opposed to the compulsory inclusion of social responsibility messages in advertising. The CAP and BCAP Codes clearly set out the standards that have to be met in relation to social responsibility and, for most respondents, this was felt to be sufficient. However, the Commission clearly feels that it may still not be enough and that more can be done to help minimise the risks of problem gambling.
However, the Commission did stop short of making the inclusion of such messages a compulsory requirement, seemingly encouraged by the industry's own response on this issue.
Display of Licensed Status
There was strong opposition to the proposal that operators be required to display their licensed status in advertising. This is unsurprising, bearing in mind that only operators licensed in the UK, the EEA, Gibraltar or a white-listed jurisdiction are permitted to advertise here anyway. Protection is given also by the application of the CAP and BCAP Codes.
The Commission has accepted that these protections are already in place. It has said that it will keep this particular matter under review, but for now will look at producing a set of guidelines for those operators who might choose to display this information within their advertisements in order to maintain a level of consistency and avoid confusing consumers.
Sponsorship on children's replica clothing
The matter of gambling sponsorship on children's replica clothing has attracted a significant amount of press over recent months. However, it seems that even those respondents to the consultation who were in favour of a ban felt that a total ban on gambling sponsorship in sport would be a disproportionate response. Furthermore, there is an extremely limited amount of research on this subject, so it is difficult to demonstrate that any such ban would be justified.
The Commission did recognise that where a gambling operator's logo appears on a child's replica shirt, this is not with the intention of advertising gambling to children. It also recognised that there is no evidence that the exposure of children to gambling advertising via replica shirts is any greater than via advertising hoardings, billboards and so on. Such a ban would not prevent children from seeing adult fans wearing clothing with the logo, betting kiosks at grounds, advertising hoardings and the players themselves wearing the kit. Ironically, some respondents felt (and the Commission acknowledged) that such a ban could even be counter-productive, with extra attention being drawn to the brand by its removal. The Commission also recognised the risk of an increase of counterfeiting and the risk to clubs of a loss of revenues.
In its responses paper the Commission recognised that the industry has shown a willingness to adopt social responsibility, which gives the Commission comfort that operators are thinking about, and looking to implement, the key licensing objectives of the Act. The Commission's suggestions about how to deal with this issue were also helpful, for example donations to RIGT and carrying social responsibility messages at grounds and in event programmes.
However, the Commission then concluded its views on this particular subject by suggesting that the industry may, nevertheless, wish to follow the Portman Group's newly adopted position in respect of alcohol by banning children's replica shirts in future sponsorship deals. This seemed to fly in the face of its earlier acknowledgements, but nevertheless was a suggestion that has been listened to by the industry. It has ended up being the position adopted under the Gambling Industry Code for Socially Responsible Advertising (please see our comments on this above).
In conclusion, initially at least it seems that the Commission is willing to let the operators consider for themselves how best to meet their social responsibility requirements. This is perhaps unsurprising considering that one of the key outcomes from the Commission's responses document is that there is simply a lack of evidence to support most of the concerns raised so far in this area. Further to this, the Commission has said that it is looking to work with DCMS and RIGT to assess the feasibility of commissioning a research project to look in more detail at the impact of carrying messages in advertising. A final regulatory impact assessment will be published by the Commission in Autumn 2007.
[Certain paragraphs of the above article were first published on gamblingcompliance.com]