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Gambling and advertising controls

Jeremy Phillips QC examines the move to online gambling and the development of advertising and player controls during lockdown.

Advertising

With the inevitable shift to online activities the Advertising Standards Authority (ASA) has issued a useful reminder to operators and their affiliates as to what, in practice, might lead to their adverts overstepping the mark. Prohibited messages and practices included:

  • Not an escape – ads that suggest gambling can provide an escape from personal or professional problems, such as loneliness or depression, are not permitted. Example: an ad for ‘Rehab Bingo’ was banned after it was taken to suggest that online bingo was a form of rehab that could be used to alleviate personal problems.
  • Never a solution – ads must not suggest that gambling can be used to solve financial concerns. Example: Facebook ad for matched betting that claimed “What would you do with some extra money?... I paid off my credit card”.
  • Pressuring people to gamble – Example: an ad for football betting: “Are you a spectator or are you a player? .. Get in on the action.”
  • That gambling takes priority in life or enhances personal qualities – as well as exploiting the young or vulnerable, or condoning gambling in a working environment (other than licensed gambling premises).

Additionally, while the ASA has never ruled formally on such issues, it reminded advertisers that gambling ads should also not: exploit cultural beliefs or traditions about luck; suggest gambling is a rite of passage; that solitary gambling is preferable to social gambling, or condone criminal or anti-social behaviour.

On a similar note, on Tuesday the European Gaming and Betting Association (EGBA) published its Code of Conduct on Responsible Advertising for Online Gambling, the first such pan-European initiative in this field.

The code was developed in the context of the EU Audio Visual Media Services Directive (Recital 30, Directive 2018/1808), which emphasises the important role of self and co-regulation in protecting minors from exposure to gambling advertising.

The Code includes specific measures on:

  • Content moderation – what gambling advertising should and should not look like.
  • Minor protection – no gambling advertising during broadcasts dedicated to minors; age screening tools on social media to protect minors.
  • Social media marketing – age restrictions on the social media profiles of gambling brands to ensure minors do not have access.
  • Sponsorship – no sponsoring of activities which have a predominant appeal to minors.
  • Messaging – responsible gambling messaging and campaigns.

Applying to EGBA members, the code is also open for signature by online gambling companies licensed in the EU/EEA and UK, other gambling associations and representation bodies of the media sector. It is EGBA’s intention to ensure that compliance with the Code is monitored and enforced by an independent third-party.

Player controls

Within the UK, members of the BGC have already stepped up safer gambling messaging, interventions and initiatives to ensure that any customers betting online are doing so safely. At the beginning of the crisis the BGC announced its 10-pledge action plan:

  1. Increase safer gambling messages across all sites and direct to all customers
  2. Step up interventions if customers increase time and spend beyond normal pre-crisis patterns
  3. Actively promote deposit limits
  4. Action to ensure appropriate and responsible advertising including monitoring volume
  5. Report all illegal, rogue advertising from black market online operators
  6. One-strike-and-you’re-out policy where affiliates breach pledges
  7. Signpost help to GAMCARE and the National Gambling Helpline and GamStop for self-exclusion
  8. Commitment to ensuring funding for Research Education and Treatment (RET)
  9. Welfare checks and well-being help for staff
  10. Supporting the Government’s ‘National Effort’ with volunteers and facilities

This was subsequently followed up with a letter to the Sports Minister, Nigel Adams, in which the BGC confirmed the industry’s full co-operation with recent GC initiatives. These included those relating to GamStop, credit cards, VIPs, advertising technology and game design.

In addition to substantially increasing funding for research, education and treatment (RET), despite the severe financial pressures affecting its members as a consequence of Covid-19, the BGC assured the minister that it would, as an immediate high priority, work with members to examine how they might secure greater prominence to safer gambling messages in all gambling adverts.

Most recently, on 12 May 2020 the Gambling Commission issued new guidance for online operators. It applies to virtually all operating licences and aims to ensure that ‘consumers are further protected’ from harm during lockdown. The latest ‘formal’ – which bears the potential for greater reliance in the event of breach – Guidance, includes the need for:

  1. Reviews of all thresholds and triggers used to track vulnerability.
  2. Specifically, review of time indicators to capture play in excess of 1 hour.
  3. Additional or modified existing triggers specific to new customers.
  4. Continual monitoring of customer base, identifying customers whose patterns have changed in the last few weeks.
  5. Affordability assessments and possibly limits/blocks for individuals picked up by thresholds or triggers.
  6. Prevention of reverse withdrawal options for customers.
  7. Abandonment of bonus offers/promotions to customers displaying indicators of harm.

The Commission says it has reviewed its current guidance in light of the risks that some players may be experiencing harm while in lockdown. Online operators must now take account of the Commission’s additional guidance ‘as soon as possible’.

Later this month the Commission will be opening a consultation which will propose strengthened measures around ‘ethical product design’, including reverse withdrawals and VIP inducements.

Jeremy Phillips QC is a barrister at Francis Taylor Building.

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