Introduction
This article analyses the law of gambling advertising in Great Britain, highlighting the limits of co-regulation against the third licensing objective,Footnote 1 considering the empirical research literature on the impact of advertising on problem gambling,Footnote 2 pointing to gaps in the protection of children and vulnerable persons and making recommendations. Our argument is that the risk assessment should not be made purely from the perspective of the population as a whole but from the viewpoint of those who are negatively affected by gambling. We argue that there is a fundamental conflict between the objective of liberalising gambling advertising and the protection of children and other vulnerable persons and that more should be done to ensure their protection. The Department of Culture, Media and Sport (DCMS) is currently reviewing Social Responsibility Measures, including the impacts of gambling advertising and the protection of children, so we hope this paper can make a timely contribution to the debate.Footnote 3
In principle, regulators have three policy choices for regulating advertising. The first option is to restrict exposure to advertising by prohibiting certain types of advertising, such as certain channels, venues and media or advertising for particular products. Before the Gambling Act 2005 (GA 2005), advertising of gambling was restricted. It was embedded within the principle that some gambling advertising is necessary to steer those who wish to gamble from illegal gambling and its concomitant criminality, but it should only respond to unstimulated demand.Footnote 4 The 2005 liberalisation led to the removal of the prohibition of advertising for hardcore forms of gambling, the underlying policy being that gambling is part of the legitimate entertainment sector and that operators should be free to advertise, within the boundaries of the licensing scheme and social responsibility. This approach means that the purpose of advertising regulation is no longer to limit demand but to reduce harm through marginal measures protecting the most vulnerable consumers. In order to achieve this objective, advertising largely relies on co-regulation.
The second option for regulating advertising are zoning measures to prevent gambling adverts coming to the attention of minors and/or vulnerable persons. The co-regulatory regime discussed below contains such zoning measures but, as we show, zoning is not very effective since it only marginally reduces the actual exposure.
The third option are standards imposed on the advertising content to reduce any potential harmful effects of the advertising message. Co-regulatory standards try to prevent minors and vulnerable adults from being exploited through fostering behaviours and perceptions which contribute to problem gambling. As we argue below, regulating the message is only marginally effective. Messages which induce irresponsible risk-taking behaviour, for example, by portraying gambling as a replacement for work or an activity that can facilitate sexual enhancement, are very close to, and impossible to distinguish from, the messages advertising legitimately conveys, such excitement, or glamour. We argue that the dividing line between the advertising messages communicating to consumers why gambling is attractive and messages which need to be suppressed because they invite undue risk taking, is too fine. Again, as discussed below, regulation largely focuses on what the advertiser intends to communicate, rather than what vulnerable members of the audience are likely to understand.
Since the second and third options are of limited effectiveness, we raise the question whether the first option (restricting advertising of gambling) should be reconsidered. This article challenges the proposition that co-regulation in this area is sufficient and argues that the current increase in gambling advertising is likely to impact negatively on the vulnerable. The evaluation of gambling advertising is detached from the overall paradigm of the third licensing objective and focuses too much on the general populationFootnote 5 and not on those who are in need of protection. We are not arguing that we should return to the position before the GA 2005 was introduced. We conclude that careful consideration should be given to limiting advertising more and to carry out specific research.
Liberalisation caused a significant increase in the overall volume of gambling adverts, with the Advertising Association figuresFootnote 6 showing that the overall amount spent annually has risen from £150 million in 2010 to £235 million in 2013. Although the spend on press gambling advertising has only increased slightly,Footnote 7 it has almost doubled for advertising on the internetFootnote 8 and on television.Footnote 9 On the assumption that spend and exposure are correlated,Footnote 10 these 2013 figures show that consumers’ exposure to such advertising is likely to have substantially increased over the last few years. Gambling advertising is pervasive, ever-present and constitutes ‘big’ business, both in terms of money spent as well as in terms of its impact on the average viewer. During 2012 an average adult in the UK was exposed to around 630 gambling adverts (between 1 and 2 a day), whereas children aged 4–15 would have seen about 211 of such adverts in the same year.Footnote 11
These figures indicate that the population, including the vulnerable, are seeing much more gambling advertising than ever before. Hence the question arises what impact this exposure may have.
1. Existing research on the impact of advertising on problem gambling
Planzer and Wardle in their Rapid Evidence Assessment of 2011, reviewing in depth 17 research articles on the impact of advertising, suggest that the impact of gambling advertising on the population as a whole and on the prevalence of problem gambling is difficult to measure.Footnote 12 The objectives of advertising are to: (a) increase the purchase/consumption of a particular product or a range of products; (b) stimulate interest and generate leads; (c) change life behaviours; (d) increase brand value and to improve the ‘image’ of a product.Footnote 13 Given that gambling had a predominantly negative image in 2007,Footnote 14 the last objective has been important to gambling operators, as a sector, for the last ten years. If the image of the product, and of gambling as a form of entertainment, is improved, this leads some users to approach risks less critically, which may in turn mean an increase in problem gambling.Footnote 15
Advertising: (1) stimulates the overall demand for a product; and/or (2) achieves increased consumption of a particular brand at the expense of competitors.Footnote 16 It is difficult to determine which of these two effects dominates, depending on factors such as the maturity of the market, the awareness of consumers and the nature of the advertising.Footnote 17 However, to the extent that consumption is increased,Footnote 18 this raises the question of whether increased consumption also increases the number of problem gamblers or the level of their problem gambling. Gambling adverts stimulate consumption also amongst those who would not participate without this stimulus, thus tempting persons to take up gambling from a young age.Footnote 19
The 2014 Review by ASAFootnote 20 included questions in the Gambling Commission's Omnibus Survey and concluded that on average about 10% of survey respondents who had gambled replied that they might have been prompted by advertising to do so. Interestingly, that rate increases to 20% for the younger age groups of 18–34 and to 28% for regular gamblers engaging in a variety of gambling activities (32% if the advert was for a ‘free’ bet).Footnote 21 For the 25–34 age group, 44% of respondents who placed bets on live sports events stated that a free bet offer had prompted them. Of the respondents who placed a bet on a broadcast live event, 20% said that they were prompted to do so because of an advert for a ‘free’ bet.Footnote 22
The total consumption model (TCM) is a theory widely accepted in relation to problematic alcohol consumption. It states that when the level of consumption of a particular product in a country increases, the harmful effects are augmented concomitantly.Footnote 23 In other words, if the mean of consumption increases, the number of excessive uses is likewise augmented. Per Binde, in his review of the research on the impact of gambling advertising in 2014, sets out the arguments made in the research literature.Footnote 24 A number of studies have indicated that the TCM applies to gambling: an increase in general consumption leads to a concomitant increase in problem gambling.Footnote 25 We argue that there is at least a likelihood that advertising stimulates demand and leads to increased levels of problem gambling. But it has been argued that greater advertising of gambling leads to a process of adaptation, stimulated by education campaigns, greater awareness of the risks, social responsibility measures of operators, public health measures, and regulation, which counterbalances the expected increase in problem gambling.Footnote 26
Currently, there is no evidence that problem gambling prevalence is increasing. In the 2007 British Gambling Prevalence Survey the problem gambling rates (in relation to the total population) were 1.0% for men and 0.2% for women, 0.6% in total (based on scoring 3 or more in the DSM IV).Footnote 27 In total 71% of men and 68% of women aged 16 and over had engaged in one or more form(s) of gambling in the past year in 2007. By contrast in 2012 the Health SurveyFootnote 28 identified the problem gambling rates (in relation to the total population) as 0.8% for men and 0.2% for women. 68% of men and 61% of women had participated in one of the listed gambling activities in 2012. The overall rates of participation and prevalence have stabilised from 2007 to 2012. Thus the increase in advertising does not seem to have led to either increased participation or problem gambling rates overall (for the short time span 2007–2012). However, the Health Survey used different methodology to the previous survey, and the figures are not completely comparable.
Based on the evidence it would be difficult to argue that the regulatory framework in the GA 2005 should return to the ‘no stimulation of demand’ model. However, persons who have suffered from problem gambling are particularly in danger by regular exposure to gambling adverts, especially if targeted online. The reason for this is that adverts, whose aim is to stimulate gambling, may affect their impulse control and lure them back into gambling.Footnote 29
Likewise, research indicates that problem gambling prevalence is much higher in minors who gamble and persons who started gambling while still minors.Footnote 30 A recent literature overview estimates that 77–83% of adolescents were involved in gambling, 10–15% of adolescents were potentially at risk of developing gambling problems and 4–8% had serious gambling problems.Footnote 31
Therefore regulation should focus on the protection of children (and vulnerable persons), and not the population as a whole. The possible effect of gambling advertising contributing to a positive attitude in society towards gambling is likely to particularly affect minors. The perception perpetrated by advertising, that gambling is a normal, everyday mainstream activity, may undermine attempts by responsible adults to discourage a child's interest in gambling and prevent disengagement.Footnote 32
2. The current laws on gambling advertising
The law on gambling advertising is complex, layered and multi-faceted, as it relies on a sophisticated interplay between statutory framework legislation (the Gambling Act 2005 and the Communications Act 2003) and co-regulatory Codes of Practice (the CAPFootnote 33/BCAPFootnote 34 Codes, ‘the Advertising Codes’ and the Gambling Industry Code for Socially Responsible AdvertisingFootnote 35) as well as further Codes issued by the two independent regulators to implement the statutory framework, namely the Gambling Commission's Licensing Conditions and Code of Practice (LCCP), and the Ofcom Broadcasting Code. Furthermore, the EU adopted a RecommendationFootnote 36 in 2014, which contains some non-binding minimum standards for player protection, including advertising.
There are no fewer than four different regulators: the Gambling Commission (the Commission), with responsibility for the licensing conditions and their implementation; the Advertising Standards Authority, adjudicating on compliance with the Advertising Codes; local authorities; and the Office of Communications (Ofcom), which is responsible for broadcasting and communications regulation under the Communications Act.Footnote 37
The distinction between broadcast and non-broadcast advertising regulation is both structural and due to the history of advertising regulation. The Advertising Standards Authority (ASA) and its sister body, the Committee of Advertising Practice (CAP) were set up in 1961/2 as purely self-regulatory bodies without legislative framework legislation.Footnote 38 With the introduction of backstop consumer protection legislation against misleading advertisingFootnote 39 and closer co-operationFootnote 40 with the (then) Office of Fair Trading (OFT) since 1988,Footnote 41 arguably the regulation of advertising is now more akin to a co-regulatory system.Footnote 42 By contrast, broadcast advertising regulation has been clearly underpinned by framework legislation, and is therefore clearly co-regulatory. Broadcast regulation has been reformed by the Communications Act 2003, which created a new regulator, Ofcom. Ofcom is responsible under the Communication Act 2003, s 319, for standards in broadcast advertising, but Ofcom has largely delegated these duties to the ASA (though it does retain a supervisory function). The ASA maintains the separation of non-broadcast and broadcast advertising and has two committees respectively, the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP). ASA adjudicates on complaints made against adverts in both sectors.
Thus, for both non-broadcast and broadcast advertising, the primary form of regulation is the delegated, co-regulatory system with the rules contained in the two Advertising Codes. These advertising specific Codes are in turn supplemented by the self-imposed, purely self-regulatory Industry Code made by the gambling industry.Footnote 43 The latter is not binding, but in practice the gambling industry does obey its provisions, since the Gambling Commission takes into account compliance in deciding on the grant of a new or revocation of an existing licence.Footnote 44 Moreover, its LCCP recommends that licensees should follow the Code.Footnote 45 The GA 2005 provides the specific framework of regulation for gambling, but its provisions on the topic of advertising are brief, defining the meaning of adverts,Footnote 46 determining their territorial application,Footnote 47 and creating the offence of advertising unlawful gamblingFootnote 48 and creating offences in relation to advertising gambling to minors.Footnote 49 The Act envisages that protection of the vulnerable is achieved through the detailed social responsibility obligations imposed on operators in the LCCP issued by the Gambling Commission.Footnote 50 Detailed regulations on advertising standards are envisaged under the reserve power in s 328 with the objective of protecting vulnerable persons from being harmed or exploited, but no such Regulations currently exist. When the GA 2005 was enacted, the advertising co-regulatory system was already well-established, so the GA 2005 deferred to this system, but included backstop powers in case the co-regulatory system was considered to be no longer adequate to mitigate the specific harms of gambling advertising. The general co-regulatory system under the Advertising Codes, the Industry Code, the supervision by Ofcom (for broadcasting only) and the backstop powers for misleading advertising (non-broadcast) have been deemed sufficient.
The statutory definition of advertising in the GA 2005 is for the purposes of the statutory offences and includes: (a) doing anything to encourage one or more persons to take advantage of facilities for gambling;Footnote 51 (b) bringing information about gambling facilities to the attention of one or more persons with a view to increasing their use;Footnote 52 or (c) participating in or facilitating an activity that is designed to do (a) or (b).Footnote 53 Sponsorship agreements are included in the definition of advertising,Footnote 54 as are sales promotion that indirectly advertise facilities.Footnote 55
This definition is narrowly tailored towards advertising that aims to stimulate demand. It does not include advertising that merely promotes the image of gambling, or brand enhancement not focused on encouraging use of a specific facility/product. It does not include pure information, so that operators of a blog or feedback/rating sites are unlikely to be caught. Because of this definition, the criminal offences discussed below have a narrow scope.
By contrast, regulation under the Advertising Codes is wider: they make a basic distinction between editorial content (in the broadcast context, programme content) and advertising. The Advertising Codes essentially apply to non-editorial content.Footnote 56 Under the BCAP Code, advertising means ‘publicity by advertisers including spot advertisements and broadcaster promotions with advertisers (outside programme time) that is broadcast in return for payment (…) or that seeks to sell products’.Footnote 57 Both brand enhancement and campaigning advertising (not promoting a particular product) are covered if it is paid for content. The meaning of ‘advertising’ is accordingly much wider than that the one adopted for the criminal provisions in the Act, as the Codes are not limited to the activity of promoting a product or facility.Footnote 58 The world wide web is governed by the CAP Code, regulating adverts hosted on third party websites and other intermediaries as well as (since 2010) adverts on the company's own business websites.Footnote 59
Children are defined by the GA 2005 and the Advertising Codes as being 15 years old and under, as distinct from young persons, who are 16- and 17-year-olds.Footnote 60 Vulnerable person has not been defined in the Act. It includes those who have had a current or past episode of problem gambling or who are at risk of developing problem gambling.Footnote 61 ASA takes a broad perspective and treats someone as vulnerable if they have ‘mental, social or emotional immaturity, impaired judgment, for example because of alcohol or drug addiction, or those who are at risk of gambling more than they can afford to or want to’.Footnote 62 This wide definition of vulnerability is correct in view of the significant evidence of co-morbidity between problem-gambling and excessive alcohol, cigarette or drug consumption.Footnote 63
3. Zoning: minimising exposure of advertising to minors
As stated above in the introduction, one option for regulating advertising are zoning measures to prevent gambling adverts coming to the attention of minors and/or vulnerable persons. The idea behind the concept of zoning is to minimise the exposure of minors and/or vulnerable persons to gambling advertising by restricting its reach, thus minimising potential harms, but still allowing advertising to non-vulnerable adults with the aim of stimulating demand on their part. Zoning as a concept has been used in the context of town planning as well as balancing free speech and protection of children on the internet.Footnote 64 Most zoning restrictions apply to the protection of minors, but the rules on self-exclusion are a form of zoning of vulnerable people.
(a) Zoning: minors
The GA 2005 contains specific criminal law prohibitions on advertising to minors: s 46(1) makes it a criminal offence to ‘invite, cause or permit’ a child or young person to gamble (subject to exceptions, set out in s 46(2)).Footnote 65
The reference to ‘inviting’ includes advertising, and the Act makes clear that ‘inviting’ includes the sending of a document which advertises gambling, or bringing to the attention of minors information about gambling with a view to encouraging them to gamble.Footnote 66
The Act does not expressly state who commits the criminal offence. This raises the question of who is responsible for an advert, which particularly on the internet can be a complex question with a contractual chain between the advertiser, the advertising intermediaries and the host of the actual advert. In terms of who may be liable, the GA 2005, s 327 has a wide reach, covering anyone involved: ‘doing anything’, ‘participating in or facilitating an activity’. Depending on individual circumstances, this may include the gambling operator/advertiser, advertising intermediaries, media owners, affiliates, the website hosting the adverts and search engines, as long as they have sufficient control over the advertising content.Footnote 67
The GA 2005 makes a basic distinction between two types of prohibited activities with intent: (i) the sending of a document (with information about gambling opportunities) and (ii) bringing information about gambling opportunities to the attention of a minor.
As we discuss below, the ASA did not upheld a claim against a gambling operator who had sent a direct marketing communication to a minor who had registered on a website, stating a false age.Footnote 68 ASA applied the rules in the Advertising Code, and in particular Rule 16.3.13, and applied a ‘no fault’ standard in the sense that the advertiser only directs its direct marketing at a minor if it has actual knowledge that a minor is on its marketing list.Footnote 69 But if gambling companies are not required to carry out age verification upon registration, but only when a financial transaction takes place, they should not be permitted to include details of such potential customers within their database for marketing purposes. If they choose to do so, they should ensure that age verification is completed, as otherwise this creates a substantial loophole in light of the many attempts of children and young people to register for a gambling account with a false date of birth.
In the online context it is difficult to ascertain the meaning of the phrase ‘sending of a document’. While this wording will cover direct marketing by email, it is less clear whether it would apply, for example, to banner advertising on a social networking site which has been targeted on the basis of cookies or other profiling mechanisms. Given its wording (‘document’), it is unlikely that the criminal provisions apply to targeted adverts on social networking sites. This is a gap which needs to be addressed, in particular if online profiles could be made to contain information about the viewer's age.Footnote 70 Arguably s 46 should apply to all targeted forms of advertising and the onus should be on the advertiser to age-verify the recipient of targeted adverts.
For the second activity ‘bringing to the attention of a minor’, the GA 2005 provides for a second type of defence, namely that that the information was brought to the attention of the minor as an incident of the information being brought to the attention of adults.Footnote 71 Thus for untargeted advertising to a general audience the advertiser need not (and indeed may not be able to) take any steps to ensure that the advert does not reach minors.
One method for keeping minors away is to use a clear message on adverts and gambling websites that gambling is not allowed for minors. The EU RecommendationFootnote 72 endorses this approach, stipulating that advertising should carry a ‘no underage gambling’ logo. In response, the Industry Code now provides that TV and print adverts should carry either a ‘18+’ symbol or a ‘no under 18s (16s for lotteries)’ type message.Footnote 73 Unfortunately this requirement was not extended to internet advertising.
Furthermore, the Industry Code requires that operators do not include their branding (logos etc) on merchandise designed for minors and attracting VAT exclusion.Footnote 74 The EU Recommendation likewise provides that promotional materials of the sponsor must not be designed for or aimed at minors.Footnote 75 This rule is too narrowly defined, as most sports merchandise such as football shirts will be of equal appeal and size to both minors (especially teenagers) and adults. Those are branded with gambling logos and promotions which are worn by minors and adults alike. Therefore stricter rules should be introduced to ensure these items are not sold to minors.
In broadcast media, advertising has been zoned by: (1) the 9pm watershed; and (2) the identification of programmes of particular appeal to minors. The 9pm watershed applies only to adverts for some forms of gambling. This has caused controversyFootnote 76 because of the exposure of minors to daytime TV adverts for (online) gambling.Footnote 77 During the House of Lords debate on the Gambling (Licensing and Advertising) BillFootnote 78 an amendment was tabled, but not passed, applying the watershed to all forms of online gambling.Footnote 79 The watershed was included as an industry standard in the self-regulatory Industry Code, but only for some forms of gambling.Footnote 80 This Code provides that adverts which were not allowed to be broadcast at all before the Act came into force (2007), should now only be broadcast after the watershed, including sponsorship arrangements.Footnote 81 Thus the watershed does not apply to betting adverts around broadcasts of sports events, nor to bingo or lottery/scratchcard adverts, the latter two already allowed before 2007.Footnote 82 Arguably, less harm stems from these softer forms of gambling.
However, recently arguments resurfaced against these exceptions, on the basis that they may lead young persons to access the homepages of websites where harder, potentially more harmful, forms of gambling such as poker and online casino games can easily be found. The second edition of the Industry Code now contains a provision that pre-watershed TV adverts must not refer to these hardcore gambling productsFootnote 83 and a reference to the clearing practices of Clearcast that such hardcore gambling must be at least ‘two clicks away’, ie not directly accessible from the landing page mentioned in the TV advert.Footnote 84 Arguably this is not much of a disincentive, as two clicks equal two seconds of browsing time. The Industry Code was changed in 2015 to provide that pre-watershed adverts must not include any offers (such as free bets) to sign-up new customers in TV adverts.Footnote 85
More generally, the debate on the value of the watershed centres on the question of whether contemporary viewing patterns by minors mean that the watershed is no longer an effective zoning tool. Minors do watch TV after 9pm, have a TV or internet-enabled device in their own bedroomFootnote 86 and/or they access TV programmes streamed on demand through catch-up services, which, naturally, are not subject to the watershed.Footnote 87 Another practical argument concerning the limited effectiveness of the watershed is that, if all gambling adverts were restricted to late at night broadcasting, this would lead to a concentration of gambling adverts at that time, which would have a negative impact on those children watching at this time and lead to very intensive exposure. For these reasons BCAP decided not to include the watershed in their rules.Footnote 88
According to a 2013 Ofcom Report, the largest segment of gambling advertisingFootnote 89 is broadcast during night time (23.00–05.59: 41.5%), but in second place is the daytime TV slot (09:30–16:59: 32%) when just under one-third of gambling spots (bingo, sports betting) are broadcast, in the third place are gambling spots broadcast immediately after the watershed (21:00–22.59: 13.1%), in the fourth place is the expensive prime-time broadcasting (17:00–20:59), only 8.7% of spots are broadcast then and finally the fewest number of gambling spots appear in the early morning (06:00–09:29 4.8%).Footnote 90 These figures show that, overall, most gambling adverts are broadcast during daytime (06:00–20:59), when minors are likely to watch.
The same report shows that a high proportion (just under one-fifth, 19.8%) of all television viewing amongst children aged between 4 and 15 years’ old took place after the 9pm slot. This proportion rose to 26.6% when children aged between 10 and 15 years old were singled out, with 8% of them viewing television after 11pm at night.Footnote 91 In summary, it is clear that minors are exposed to gambling advertising, as the watershed does not apply to advertising of certain forms of gambling, and because of different viewing patterns that mean more minors watch content outside the hours of protection.
In addition to the watershed, broadcasting also relies on zoning based on the nature of the programming. But this has only a limited effect, as minors aspire to and consume some of the same programming as adults. Content specifically targeted at minors forms only part of what they consume. Nevertheless, the UK regulation and the EU RecommendationFootnote 92 have adopted an approach focusing on content specifically and predominantly targeted to minors and not on content which impacts specifically on them. Again, the focus here is on the communicative intent of the advertiser, not the impact on a vulnerable audience.
The approach under the BCAP Code is to list the types of adverts, which must not be advertised during, preceding or following editorial content which is: (1) commissioned for; or (2) principally directed at; or (3) of particular appeal to children.Footnote 93 The BCAP GuidanceFootnote 94 states that broadcasters should have no difficulty identifying the first two types of programming but explains the third category (particular appeal).Footnote 95 It explains that broadcasters should use audience data to predictFootnote 96 whether a programme is of particular appeal to children.Footnote 97 In addition to audience data, broadcasters must consider factors such as a subjective analysis of the content, the channel profile and the time when the programme is broadcast.Footnote 98
The audience data is based on the viewing figures determined by the Broadcasters’ Audience Research Board (BARB). BARB uses a self-selected, but representative panel of 5200 homes whose viewing patterns are monitored. The Audience Index is calculated as a proportion of the percentage of children watching a particular programme in relation to the percentage of the total population watching a programme.Footnote 99 If the Audience Index equals 120 or greater, a programme is deemed to be of particular appeal to the age band.Footnote 100 For example, if 6% of children have watched a particular programme, but only 5% of the total population have viewed the same programme, this programme will be deemed to be of particular appeal to children. If the proportion is the same (or even slightly higher) for children as it is for the total population, the programme would not be considered of particular appeal to children, even if the percentage figures are very high (for example 40% of children and 34% of adults having seen the programme). Therefore the zoning rules do not protect children in relation to advertising where the programme's audience is mixed, even if a high percentage of all children view the programme. Audience indexing is not required for special interest channels unlikely to appeal to children, for example a channel covering horse-racing.Footnote 101 Finally, the BARB age bands do not capture young persons (16–17-year-olds), which leaves that age-group unprotected.
On the internet, it is less likely that minors are inadvertently exposed to gambling advertising online, since much advertising on the world wide web is targeted to users’ presumed interests based on behavioural tracking. For example, a banner advert for online gambling is triggered if the device's browsing history (recorded by cookies and other tracking tools) reveals access to relevant websites. Such targeted advertising would only be seen by minors if they have previously accessed online gambling websites or if the computer is shared and the browser is used by someone (such as a parent) who had previously accessed a gambling website or entered relevant search terms. In that latter scenario, it would be up to the parent to diligently delete the cookies created by the session and/or operate device level filtering. Keyword triggered advertising on search engine results pages (such as Google Adwords) likewise appears only after keywords have been entered.
Sports-related advertising triggered on social media especially raises further issues. In particular, the use of third party affiliates has generated substantial controversy amid claims that affiliates specifically target vulnerable people.Footnote 102 The ASA has now made clear in its guidance that primary responsibility for observing the Codes remain with the gambling operator.Footnote 103 The CAP Code applies and provides that gambling and lottery adverts must not be directed at persons under the age of 18 through a selection of media or context in which they appear.Footnote 104 In the following we explain that Youtube seems to comply with this provision according to its own policy statements. Gambling adverts being played, for example, before a YouTube video clip clearly directed at children (eg Peppa Pig) would be a breach of the provision. Google has a restrictive policy in respect of gambling adverts and requires approval and certification of compliance with the local law of the country where the ad is displayed.Footnote 105 According to the Google policy, this allows the display of gambling adverts only in countries where the advertising of gambling is allowed.Footnote 106 Google distinguishes between approved ‘family safe’ and ‘non-family safe’ adverts. Adverts for offline gambling are considered ‘family safe’ whereas adverts for online gambling are considered ‘non-family safe’.Footnote 107 Presumably this is because minors can directly access the online gambling website but not the offline gambling facility.
This means that YouTube, as a general policy rule, does not allow the placement of online gambling video advertising spots or images before a video on YouTube. However gambling adverts do appear not only in spots before a video but also as the ‘main’ video on YouTube. Here, a main cause for concern are funny, trendy viral spots for online gambling, featuring as the ‘main’ video on video-sharing and social networking websites, as these are likely to be watched by minors.
In the context of social media zoning an additional problem arises from the lack of proper age verification of accounts. Children are being bombarded on Twitter and other social media sites with gambling adverts, including free bets, for example, if they follow a particular football related Twitter account.Footnote 108 ASA have stated that ‘when using social media accounts that attract a wide array of followers, marketers (and/or their affiliates) must be able to demonstrate that the overall demographic of followers does not indicate that a gambling advert would be directed at those under the age of 18 in that space’.Footnote 109 However, this ignores the problem that such accounts are usually followed by minors and adults and are not targeted to either group (which is precisely the problem) so that a zoning approach does not work.
In an ASA adjudication concerning an advert for bingo on the X-Factor Facebook page, the complainant argued that this advert was of particular appeal to children, given their high rate of Facebook use. The complaint was not upheld, on the ground that the advert was only targeted at Facebook users who had registered as over 18.Footnote 110 This ruling does not take into account that the registered age on Facebook is self-declared, hence children register as adults. An ASA surveyFootnote 111 commissioned to find out what adverts young people see and engage with on social media sites,Footnote 112 and whether those adverts stick to the UK advertising rules, suggests that the majority of childrenFootnote 113 are registering on sites using false ages and are therefore exposed to advertising intended for an older audience. Thus, registration is accepted without any further verification of the applicant's age, exposing children to adverts that they are not supposed to see.
Further problems arise when minors register with personal details on gambling websites and then receive direct marketing communications as a result. In a recent ruling the ASA rejected a complaint against a direct mailing from Casino Rewards sent to a 14-year-old child.Footnote 114 The complaint was not upheld, as the minor had successfully registered with the site by providing a false date of birth but – as he did not attempt any gambling – age verification was never carried out. The ASA accepted Casino Rewards’ statement that they had acted in good faith, but it is at least questionable whether good faith should be sufficient here. This decision shows that age verification should be carried out not just when a person starts to gamble, but as soon as he or she registers on a gambling site and direct marketing is sent.Footnote 115 The LCCP should be changed to include such an obligation. This is even more important, since minors access gambling websites in order to play ‘demo’ gamesFootnote 116 that are free to play and typically do not invoke any age verification processes. If these demo games are used by operators to ‘harvest’ contact data, then there should be an obligation to carry out age verification. It would mean that operators cannot simply turn a blind eye to the question whether the person registering their details online is a minor or an adult. As a step in the right direction the ASA has stated in a news article on its website that its policy guidance is that if advertising is freely accessible to and of particular appeal to minors, this may be a breach of the CAP Code. However, this still requires the adverts to be more appealing to minors than to adults and therefore leaves open the question of untargeted advertising or demo games on websites and affiliate advertising on social media.Footnote 117
In conclusion, this section has shown the challenges of zoning advertising both for broadcast and online media. We recommend that the warnings that underage gambling is illegal should be extended to the online space. We have also shown that zoning online is not effective, for two reasons, namely: (1) that it is based on the self-declared age of users; and (2) many teenagers are interested in emulating adult interests and are tempted to register a false age.
One possible response to the zoning issue is the use of profiling technology. The question here is whether online profiling technologies used on the world wide web can be honed to aid the zoning of advertising. To the extent that advertising intermediaries and data brokers compile complex profiles on the basis of which advertising is targeted, these profiles could be used to keep gambling advertising away from minors. An example of this emerged in a recent ASA adjudication, which was not upheld precisely because the advertiser could show evidence that 80% of listeners to the music used in the YouTube advert were in the 25–44 age bracket.Footnote 118
This raises the wider question of whether the law should impose an obligation on advertisers who use targeting mechanisms online, to include age-verification elements in their profile, in order to prevent underage individuals being targeted by gambling adverts. For the effectiveness of the zoning protection on the internet, it will be crucial whether profiles assembled through cookies and other technologies can be used for age-verification purposes and whether regulation should enable, encourage and/or impose such use. Future research should address this question, including the data protection and privacy implications of including a person's adult/minor status in profiles.
(b) Zoning and vulnerable persons: self-exclusion
Self-exclusion is based on players voluntarily choosing to be blocked from gambling activities and advertising.Footnote 119
Self-exclusion and the zoning of advertisingFootnote 120 may offer vulnerable persons a reprieve from returning to gambling activities.Footnote 121 There is some evidence that advertising may exacerbate the conditions of those with a gambling problem and may prevent a successful recovery.Footnote 122 Accordingly, the prevention of advertising to problem gamblers has been recognised as an important factor, as it allows them to seek treatment without being lured back.
The GA 2005 contains no criminal penalty for advertising to self-excluded gamblers. But paragraph 3.5.8 of the legally-binding social responsibility part of the LCCP provides that all licensed providers must put into effect procedures for self-exclusionFootnote 123 and must ‘as soon as practicable, take all reasonable steps to prevent any marketing material being sent to the self-excluded customer’,Footnote 124 including removing the details of self-excluded customers from the database within two days.Footnote 125
This obligation applies to targeted advertising such as that by email and SMS. More interesting is the question whether it could apply to online, behavioural advertising, such as banner advertising, pop-up advertising, social media advertising, which is based on a profile. This is targeted, but it is not necessarily feasible to link the information on the self-exclusion register with the information used for targeting advertising. The LCCP states at the moment that the self-exclusion register must contain ‘appropriate details’.Footnote 126 This is not sufficient to prevent all forms of targeted marketing. For the future, it should include details identifying an excluded customer online (device-specific identification and digital fingerprinting). This would have to be achieved in a privacy-friendly way and in particular avoiding the sharing of information that a person has self-excluded.
Finally, the advertising prohibition only applies to those gamblers who are currently on the registers and does not extend to those who have self-excluded in the past and remain vulnerable. Providers must not send targeted marketing materials to self-excluded customers at the end of the period of self-exclusion to invite them to gamble again. But marketing materials may be sent again, after a period of self-exclusion, if the customer has taken positive action to gamble again.Footnote 127 Arguably, even then customers should not be sent direct marketing. There have been recent reports in the news that affiliates have targeted vulnerable persons and in particular players who had stopped gambling to entice them back.Footnote 128
Self-exclusion is one attempt to implement the zoning of vulnerable adults, but much more work needs to be done, including research as to what measures may be effective and on privacy implications. We recommend that the provision that direct marketing must not be sent to self-excluded persons should be extended to persons who have self-excluded in the past.
4. Regulating the advertising message: the content of advertising
As has been pointed out in the introduction, one way of regulating advertising is to prevent minors and vulnerable adults from being misled as to the nature of gambling and from being exploited through fostering behaviours and perceptions which contribute to problem gambling. The content of advertising is largely left to co-regulation, with no statutory intervention, contained in the two Advertising Codes and the Industry Code.
One omission in the UK Codes (but contained in the EU Recommendation) is a prohibition of celebrity endorsement for online gambling.Footnote 129 This currently is not prohibited but in light of research showing that endorsement by various celebrities or professional gamblers increases a positive attitude in children,Footnote 130 this recommendation should be introduced.Footnote 131 Some content regulation is contained in the Ofcom Broadcasting CodeFootnote 132 for marketing methods considered to be part of the programme content, in particular product/prop placement, sponsorship, cross-promotions and premium rate services.Footnote 133 Product placement for gambling products is prohibited by the Ofcom Broadcasting Code.Footnote 134 However, sponsorship by gambling providers (such as a betting provider for sports) is allowed.Footnote 135
But most of the content rules are contained in the Advertising Codes’ provisions, prohibiting three classes of gambling adverts (our classification): (i) those that portray as acceptable unsafe gambling behaviours, thus normalising problem gambling; (ii) those that specifically address the inexperience and credulity of minors; and (iii) those that appeal to specific irrational or ritualistic beliefs and exert undue pressure to gamble.Footnote 136 A search on the ASA adjudication site shows that in relation to published adjudication in respect of ‘gambling’ complaints, 59 complaints were adjudicated in the five-year period 2011–2016,Footnote 137 of which 45 (76%) were upheld (or partly upheld) and only 14 were dismissed as being not in breach.Footnote 138 This shows that the review against the rules is stringent.
(a) Unsafe gambling practices
This is the first category of advertising messages which are restricted by the Advertising Codes. In particular, adverts must not:
• portray, condone or encourage gambling behaviour that is socially irresponsible or could lead to financial, social or emotional harm;Footnote 139
• suggest that gambling can provide an escape from personal, professional or educational problems;Footnote 140
• suggest that gambling can be a solution to financial concerns, an alternative to employment or achieve financial security;Footnote 141
• portray gambling as indispensable or as taking priority in life, for example over family, friends or professional or educational commitments;Footnote 142
• suggest that gambling can enhance personal qualities, for example self-image or self-esteem, or is a way to gain control, superiority, recognition or admiration;Footnote 143
• suggest that solitary gambling is preferable;Footnote 144
• condone or encourage criminal or anti-social behaviour;Footnote 145 and
• condone or feature gambling in a work place/environment.Footnote 146
An example of a complaint which was not upheld is the one concerning a TV and for an online casino, Betway, in which a young professional couple is seen returning home in the evening and opening the fridge which turns into a fruit machine, running a tap pouring out casino chips and featuring a tablecloth that appears like a roulette table etc. The complaint was that this showed socially irresponsible gaming at home and gaming taking priority in life. The ASA Council did not agree, arguing that the online gambling was shown as an after-hours evening and leisure activity.Footnote 147 Similarly, in an advert for online poker which showed a man losing and subsequently walking away from the poker table with the voice over ‘Some nights you catch great cards. (…) And it's still not enough. But there's always another hand. We play at FullTiltPoker.com’ was found not to be socially irresponsible by ASA as the man was not shown to chase losses and walked away from the table at that point.Footnote 148 By contrast, a gambling advert must not suggest that any winnings may be used to pay off a mortgage, as this suggests that gambling may be a solution to financial concerns.Footnote 149 Furthermore a website advert showing a silhouette of a hanged man with text advertising ways to ‘improve your betting’ was held to be socially irresponsible.Footnote 150
(b) Inexperience and credulity of children and young persons
This is the second category of advertising messages which are restricted by the Advertising Codes. In particular, adverts must not:
• be socially irresponsible with regard to the need to protect minors and vulnerable persons from being harmed or exploited;Footnote 151
• exploit the susceptibilities, aspirations, credulity, inexperience of minors or vulnerable persons;Footnote 152
• be likely to be of particular appeal to minors, especially by being associated with youth culture;Footnote 153
• include a minor. No-one under 25 years old may be featured gambling or behave in an adolescent, juvenile or loutish way;Footnote 154
• suggest that gambling is a rite of passage.Footnote 155
The ASA Council upheld a complaint against a Betfair email advert for an online poker site showing a photograph of Annette Obrestad ,a young poker champion. The Council found that this breached the rule against adverts being of particular appeal to minors and the rule that no-one featured gambling must be under 25. The ASA Council held that the advert breached the rules, as the context (Annette being famous for having started playing when she was 15) and the message encouraged underage playing.Footnote 156 The rule on not showing persons under 25 years in connection with a sports betting advert in a newspaper was also upheld against Paddy Power, featuring football player Luiz Suarez, then aged 24. Also upheld were complaints against the advertisement tweet for Petfre that included a photo of Jordan SpiethFootnote 157 or in an email showing Memphis DepayFootnote 158 for Ladbrokes (both under the age of 25). There is an exception that an advert may focus on a sportsperson under 25 at the place where the betting takes place (points of sale, such as an online betting website).Footnote 159 This exception is a serious hole in the child protection provisions, as minors are likely to idolise prominent sports persons and will therefore be encouraged to place a bet on the basis of point of sale advertising.
The rule that gambling adverts must not be of particular appeal to children was breached when an online casino used the image of Optimus Prime (from the Transfomers animation) in its advertising in the financial section of a newspaperFootnote 160 or in a regional newspaper (Metro),Footnote 161 similarly in relation to the use of ‘Spiderman’ for an online casino gameFootnote 162 or a pirate cartoon and his goat companion.Footnote 163
By contrast, featuring Robin Hood in a TV commercial was not a breach even though Robin Hood is a popular childhood character. This specific advert borrowed scenes from a movie filmed against 1938 background that were deemed to be unfamiliar to children. This ignored the fact that children often watch and like historical movies where old style fashion and old use of language is often portrayed. This shows the subjective nature of the assessment.
Likewise the ASA did not uphold a complaint in respect of an advertising clip using arcade style animations, computer generated images and fast-paced action special effects on the basis that the retro-style nature of the clips and music was pro-actively targeted at the 25–44 age group by the artist and advertiser.Footnote 164 The reasoning was that this advert mainly related to the youth culture of 20 years ago, but deliberately ignored the fact that the advert may additionally be attractive to minors of today because of its playful nature. This shows again how difficult it is to delineate adult and child spaces and again shows how regulation is focused on the communicative intent of the advertiser and not the impact on the vulnerable audience.
Furthermore, in a ruling concerning a bingo advert on Facebook which used furry cartoon characters and in its make-up was likely to appeal to children, the ASA Council did not uphold the claim, as it was found to be sufficient that the online bingo site which the advert linked to used stringent age verification checks.Footnote 165 This ruling ignores the child protection rules and its reasoning completely hollows out the child protection rules in the CAP Code, as the advertising provisions have the purpose of preventing to stimulate demand for minors. If restrictions at the point of supply were sufficient there would be no need to regulate advertising.
(c) Irrational, ritualistic beliefs and undue pressure
This is the third category of advertising messages which are restricted by the Advertising Codes. In particular, adverts must not:
• suggest peer-pressure to gamble nor disparage abstention;Footnote 166
• link gambling to seduction, sexual success or enhanced attractiveness;Footnote 167
• portray gambling in the context of toughness or link it to resilience or recklessness;Footnote 168
• exploit cultural beliefs or traditions about gambling or luck.Footnote 169
The ASA Council upheld a complaint in relation to a TV advert for Supercasino.com which portayed a man holding a casino chip and using it like an entry card to a club. ASA received complaints alleging that this breached the rule against linking gambling to seduction and enhanced attractiveness and the rule that gambling improves self-image and is a way to gain recognition and admiration, which it upheld. This ruling is interesting as the ‘message’ in the ad depends on the viewer's perception: on the surface the advert merely shows friends meeting in a casino, but the ruling is not unconvincing, as the main character in the advert is forming a type of entourage, exchanging glances with various females who follow him, in step.Footnote 170
Similarly, in a complaint against an image of a woman pulling down her trousers with her underwear showing the message ‘‘IF YOU CAN READ THIS IT'S YOUR LUCKY DAY’Footnote 171 the ASA upheld the complaints on the same grounds. However, a complaint against an advert for Winner Bingo that portrayed a man progressively undressing himself each time the women shouted ‘bingo’ was not upheld.Footnote 172 The actual rationale behind the differentiating treatment is difficult to discern other than the subjective assessment of what constitutes a sufficient reference to sexual seduction. These rulings show the subjective and difficult nature of the assessment.
In relation to the last rule, that advertising must not exploit cultural beliefs or traditions about gambling or luck, the CAP/BCAP Help Notes state that ‘advertisements should avoid the use of cultural symbols and systems such as horoscopes if those symbols relate to an existing, strongly and communally held belief. These rules are not intended to prevent references to symbols or obsolete superstitions that are unlikely to be taken seriously, such as a clover leaf’.Footnote 173 This begs the question of when symbols and systems are seriously held beliefs and when they are obsolete superstitions. This again is highly subjective, culturally relative and unclear. In many respects, the more irrational and the more superstitious a belief is the more risky it is in terms of gambling conduct (for example a belief in number systems in roulette). It is also known that many problem gamblers suffer from gamblers’ fallacy significantly more than the general population.Footnote 174 Accordingly, this rule should be assessed against beliefs held by those who may be vulnerable and not with reference to the general public.
The rulings examined show that ASA applies the provisions in the Codes rigorously. However, we argue that these examples illustrate that it is difficult to apply these rules consistently and effectively, since the assessment of what constitutes a breach is highly subjective (eg what appeals to children) and there is a fine dividing line between what constitutes a breach (risky behaviours/irrational beliefs) and what constitutes creative and attractive advertising (desirable attributes of gambling). Gambling, by its very nature, appeals to the part of human nature which is risk-taking, speculative, irrational and playful. Therefore, these elements are likely to play a role in advertising, and so the industry legitimately pushes the boundaries. Furthermore, the self-regulatory approach is fault based and relies on the transmission theory of advertising in the sense that it assesses communication from the perspective of the sender. This does not facilitate a more in-depth look at the potential impact on the viewer and how it may affect those who are most in need of protection from gambling related harm. For these reasons, regulating the content of the message is desirable, but its effectiveness limited.
Conclusion
This paper has reviewed the regulation of gambling advertising by legal and self-regulatory measures, focusing on the protection of minors and vulnerable persons. We argue that current regulation is no more than a sieve which holds a little water.
Essentially, there is a fundamental conflict between the objective of liberalising gambling advertising and the protection of children and other vulnerable persons. We contend that more should be done to ensure the protection of these groups, in order to prevent the hollowing out of the third licensing objective. While the scope of the self-/co-regulatory measures is extensive in terms of gambling advertising, there are concerns about the clarity and complexity of regulation. Some minor changes have been made in reaction to the 2014/15 Review, but much higher protection standards should be achieved and therefore fundamental rethinking is required.
Zoning measures to keep advertising away from children and vulnerable persons are only somewhat effective in respect of minors, and hardly exist in respect of vulnerable persons. As far as measures to regulate the content of the advertising message are concerned it was shown that they have limited effectiveness, since the assessment of what constitutes a breach is highly subjective (eg what appeals to children) and there is a fine dividing line between what constitutes a breach (eg risky behaviours/irrational beliefs) and what constitutes creative and attractive advertising (eg showing the desirable attributes of gambling).
We draw two main conclusions: first, regulation currently focuses too much on the impact on the general population and does not take into account sufficiently the needs of children and vulnerable persons. Regulatory standards are based on the communicative intent of the advertiser and not on how the advertising message is received by and impacts on vulnerable people. The assessment of risk should not be made purely from the perspective of the population as a whole, but should include the viewpoint of those who are negatively affected by gambling.
Secondly, advertising regulation as it currently stands focuses mainly on traditional, offline media and therefore there is a lacuna in respect of most forms of online advertising. Therefore, we recommend that regulation should urgently be updated to cover online advertising, taking into account functional equivalence, technology assisting regulation and enforcement, consumer behaviour and jurisdictional issues. We argue that for internet advertising, the use of online profiling and targeting technology should be considered for the zoning of advertising. This would require careful examination of the data protection and privacy implications, but further research could indicate how to make such profiling compliant with data-protection laws.
Where advertising is directed or targeted, advertisers should always be under an obligation to age-verify before the advert is disseminated. So, for example, where minors register on social media or a gambling website stating a false age, an additional process should verify their real age through appropriate age-verification technology before an advertising campaign is started. Minors on Twitter or Facebook who follow a football team's account should not be sent sign-up offers (eg ‘free bets’). Minors who register on an online gambling website and play demo games without monetary stakes should not be included in a direct marketing campaign. Where gambling advertising is based on a person's profile (eg banner advertising), technologies should be developed to ensure that this profile contains an age-verification element. While sign up promotional offers have been removed from pre-watershed TV adverts, a similar move must be considered for social media accounts unless appropriate age-verification takes place.
Furthermore, the GA 2005 raises two specific issues: first it is difficult to ascertain the precise meaning ‘sending of a document’. We argue that this should include the modern version of an online document. Arguably s 46 should apply to all targeted forms of advertising and the onus should be on the advertiser to use appropriate technology to age-verify the recipient of targeted adverts.
As to the second conclusion, advertising to the general population should be restricted where it has a demonstrably high impact on minors or vulnerable people. This is particularly tricky where advertising is not directed to individuals. Currently the test for regulation seems to be whether the advertising is of particular interest or appeal to minors. However, advertising can be made to appeal to a particular adult target group (for example by choice of music), but still be of high interest to children, so that the advert appeals to adults and children alike. We argue that there should be a positive obligation on advertisers to make their adverts unattractive, or at least boring, to minors.
Moreover, there should be a strict rule against celebrity (especially young sports persons) endorsements in gambling advertising, given their influence on minors. Such a rule should include point of sale advertising. Furthermore, the sponsorship rules should ensure that no equipment or clothing (including merchandising) which minors wear contain betting references. Likewise the ‘no under 18 gambling’ logo/message should be extended to all internet advertising.
There are few measures to implement the zoning of vulnerable adults. Self-exclusion is one important attempt, but much more work needs to be done including research as to what measures may be practicable and effective. It is suggested here that the provision that direct marketing must not be sent to self-excluded persons should be extended to persons who have self-excluded in the past, and gambling adverts should not be targeted to individuals who gambled in the past but have stopped.
We argue that the evaluation of gambling advertising is detached from the overall paradigm of the third licensing objectives and focuses too much on the general population rather than on those who are in need of protection. This paper challenges the proposition that co-regulation in this area is sufficient, albeit that it makes a valuable contribution. A frank debate on the regulation of gambling advertising is required, taking into account the interests of all stakeholders and thinking creatively of solutions outside the traditional regulatory mechanisms (such as the watershed) as the media landscape and consumption habits are changing, in particular in respect of the online space. Any review of advertising should include a consideration of more restrictive forms of regulation founded on the precautionary principle, including clarifying and strengthening the enforcement of the criminal provisions in the Act.
