Framework emerging on advertising and under-18 appeal
The first tests of the rules prohibiting gambling marketing with ‘strong appeal’ to children provide operators with some useful insight on the ASA’s approach to the matter, says Felix Faulkner, solicitor at Poppleston Allen
When the Committee for Advertising Practice (CAP) announced last April that it was changing the rules to prevent gambling advertising using personalities of ‘strong appeal’ to children, it quickly became clear the change would have a significant impact on the industry.
Though the change from saying advertising should not be of ‘particular appeal’ to children to stating it must not be of ‘strong appeal’ might at first glance have seemed a mere rewording, the associated guidance made clear this was not the case. The general feeling was that many of the celebrities typically used by gambling companies would be off limits going forward.
The first test of the new rules, brought by the Advertising Standards Authority (ASA) itself, seemed to confirm this view. In December the ASA found against Ladbrokes for featuring Premier League footballers Philippe Coutinho, Jesse Lingard and Kalidou Koulibaly in a promoted tweet, dismissing the operator’s arguments the tweet was targeted at those over 25 and that it was brand engagement rather than advertising.
The ASA said that Ladbrokes did not consider under-18s to have been properly excluded as Twitter allows users to verify their own ages. It did not address the brand engagement claim. The key takeaway was that marketing of any sort using celebrities of this ilk is only going to be possible if the audience of that marketing has been robustly age-gated.
However, the next two rulings related to the guidance seem to suggest there is still scope for gambling operators to use well-known personalities.
In February the ASA failed to uphold complaints about advertising involving ex-footballers, the first related to Paddy Power adverts featuring Peter Crouch, the second related to a Sky Bet promoted tweet that included Micah Richards.
Grey area
Retired footballers are something of a grey area as while the CAP guidance relevant to the regulations puts current football players in top UK clubs in the high-risk category, it says “retired footballers who have moved into punditry/commentary will be assessed on the basis of their social and other media profile” and puts them in the moderate-risk category. It also says that “a long-retired footballer now known for punditry/commentary” falls into the low-risk category.
Coincidentally, both Crouch and Richards retired completely from playing professional football in 2019, just four years ago. However, central to the decision that neither was of strong appeal to under-18s seems to have been the fact that prior to retirement, neither was playing for a top-flight club.
Other key factors were that neither was associated with the more youth-oriented social media platforms; Crouch did not have public accounts on TikTok, Facebook or Twitch at the time of broadcast, while for Richards the same applied for YouTube, TikTok and Twitch.
Both operators gave clear information on the personalities’ other media activities, along with audience demographics that supported these being adult-oriented. Paddy Power even addressed Crouch’s ad having a Christmas theme, explaining it had set the ad in a pub and dimmed the lights on the Christmas tree to lessen any appeal to young people.
It’s clear that both operators had gathered a significant amount of evidence on the celebrities, in line with the expectation set out in the CAP guidance, and this is likely to have been part of what swayed the decisions in their favour.
Because these rules are new, we are likely to see a lot more tests of the boundaries going forward, such that in the early stages they may almost act as an approval process. However, there is more to glean from these rulings than that Crouch and Richards are approved while Coutinho, Lingard and Koulibaly are not.
Taken together, they provide an early framework for operators to follow. The next test may well be related to a retired manager or a player in a lower league, but the same process is likely to be used to determine whether they are of strong appeal to under-18s.
Felix Faulkner is a solicitor at Poppleston Allen. He joined the firm in 2019 and specialises in both licensing and gambling law. He advises a broad selection of clients in both the gambling and hospitality sectors on various aspects of the law, from summary review of premises licences to operating licence applications to the Gambling Commission.