This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
Three rulings published by the Advertising Standards Authority (the “ASA”) on 28 October 2015 serve as an important reminder of the application of the CAP Code (the “Code”) to the use of social media by gambling operators. The operators in question (Coral, Bet365 and Totesport) all published tweets on Twitter which included images of American golfer Jordan Spieth, who was 21 years old at the time and the recent winner of the US Open tournament. The tweets speculated in varying manners about how many major golf tournaments he would go on to win. All three were found to be in breach of the Code for prominently featuring an individual under 25 years of age in a marketing communication for gambling and subsequently banned from appearing again in their current form.
Under 25s featured in gambling advertisements
The tweets were found to be in breach of rules 16.1 and 16.3.14 of the Code. The former rule is a general obligation requiring marketing communications for gambling to be socially responsible (with particular regard being paid to protecting children and young persons). The latter specifically prohibits the use of images of a person who is, or seems to be, under 25 years old, gambling or playing a significant role in any marketing communication. This is, however, subject to an exception. Individuals who are, or seem to be, under 25 years old (18-24 years old) may be featured as such if the communication appears in a place where a bet can be placed directly through a transactional facility. The example given by the ASA in this respect is an operator’s website. In addition to this, the individual featured must only be used to illustrate specific betting selections where that individual is the subject of the bet offered, and any image used must show them in the context of the bet and not in a gambling context.
Does the Code apply to tweets?
Questions were raised by the operators as to the application of the Code to the tweets and whether they fell within the ASA’s remit. As evidenced by the ASA, the Code states that it applies to “advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts…”. The ASA’s rulings clarify that tweets (and posts on other social media), assuming they are “directly connected with the supply or transfer of goods, services, opportunities and gifts”, can fall within the Code’s scope as they are on “non-paid for space under their control”.
Were the tweets “directly connected” to gambling services or products?
Coral and Totesport’s tweets included specific odds and direct links to their websites. On this basis, Coral’s tweet was found to be “directly connected” with the supply or transfer of goods and therefore within the remit of the CAP Code (whilst the ASA’s report is silent in this respect to Totesport, it is assumed that the same basis applied here).
Interestingly, Bet365’s tweet – which featured a photo of Spieth and stated “FILL IN THE BLANK: I think Jordan Spieth will win _ Majors in 2015” – did not contain odds nor a direct link to the operator’s site. It was argued by the operator to merely invite followers to discuss how many majors Spieth might win. The ASA however ruled that the tweet encouraged readers to make a prediction and in turn consider gambling, as well as promoting the brand of the operator and commenting on a sporting event that the operator would take bets on. Furthermore, Bet365’s twitter homepage (which could be accessed with one click when the tweet was viewed in the user’s feed) included a direct link to their website where bets could be placed. It was on these facts that the tweet was deemed to be “directly connected” with the supply or transfer of goods and therefore within the remit of the CAP Code.
Did an exception apply?
As explained above, an exception exists to rule 16.3.14. Totesport claimed that its tweet – a photo of Spieth with the statement “We have gone 3/1 (from 15/8) for Jordan Spieth to win the #US Open! Will NOT last! Bit.ly/USOpenGold15” – satisfied the exception as it contained a link direct to their website where a bet could be placed. The ASA, however, found that this was not the case as the communication had not appeared on the operator’s website (being the place that a bet could be placed through a transactional facility). Instead, it contained a link to the website, and this did not satisfy the requirements of the exception.
Lessons to be learnt
These cases are an important reminder to gambling operators. Not only do they illustrate the fact that tweets and other social media advertising are likely to fall within the scope of the Code, but also that the rules around featuring under 25s in adverts will be read strictly.
For Olswang’s introductory guide to advertising gambling in Great Britain click here.