UK LEGAL COMMENT


This was accompanied with a video captioned “have another go”, which showed a customer watching the race live and looking disappointed, until he looked at his phone and smiled. The ASA considered that the phrase “have another go” in combination with the video showing the man’s mood improving due to the free bet offer was likely to encourage some consumers to take up the offer repetitively, therefore encouraging gambling behaviour that was potentially harmful. While the concept of the free bet offer itself does not seem to have been an issue, this ruling means that all gambling operators must be very careful about how they present free bets or spins, when their offer relates to recent unsuccessful gamble. On the same date, the ASA also ruled on an advert by another GVC group operator, Ladbrokes. The Ladbrokes advert, which was shown on TV in late February 2020, showed a man filling his car with petrol and the price stopping at £77.77, which the man celebrated. It also showed a man ordering a sandwich and using the term “hit me” to request further fillings and a woman spinning a clothing rail in a shop, trying to decide between a red or black item. Five complainants to the ASA thought this advert showed gambling encroaching into the characters’ everyday lives. However, the ASA did not uphold these complaints, as it did not believe that the advert portrayed gambling as indispensable or as taking priority over the tasks being shown in the characters’ lives, just that they were briefly reminded of gambling while carrying out those tasks. How do we reconcile these two rulings, when both


adverts received complaints that they portrayed socially irresponsible gambling behaviour, but in one the ASA seemingly took a strict approach and in the other one which was more generous to the operator? The Coral advert showed a man in a gambling environment (at a horse race) having a typical reaction to receiving another chance to bet after his horse failed to finish, whereas the Ladbrokes advert showed characters whose gambling was seemingly filtering through to their ordinary lives in an unusual way. The differing approach is explained by the fact that the Coral advert hit on a few recurring themes in ASA rulings and guidance. “Call to action” messaging has been criticised by the ASA before, with “have another go” perhaps seeming similar to “bet now!” offers during live events which it has advised against, although “have another go” lacks the same sense of urgency. The ASA felt that the Coral advert encouraged repetitive play,


which it specifically warns against in its guidance on gambling advertising. The advert also included imagery showing gambling having a transforming effect on someone’s life, or in this case on their mood. Had the Ladbrokes advert included any “call to action” messaging or showed the gambling imagery improving the characters’ mood or experience the ruling would likely have been different. In the context of the COVID-19 crisis, we could also expect a very different approach to an advert which showed gambling intruding into everyday life as a consequence or side-affect of lockdown or self isolation. The UKGC has also shown its willingness to implement a stricter approach to compliance in the current circumstances and to dispense with its usual consultation process before issuing new restrictions and requirements, by issuing customer interaction guidance which added a number of additional measures to be followed by operators. This included requiring operators to treat any play in excess of one hour as an indicator of harm and prevent reversed withdrawals. Social Responsibility Code Provision 3.4.1 of the LCCP includes a specific requirement for licensees to take into account the UKGC’s guidance on customer interaction, which enabled these new provisions to be brought into force at short notice. A similar provision does not appear in relation to guidance on advertising restrictions, but there is a general obligation to advertise gambling in a socially responsible manner.


It


wouldn’t be surprising if the UKGC were to issue specific guidance which restricts advertising during the COVID-19 crisis, if it considered it necessary. As it is a requirement of the LCCP that UKGC licensees


comply with advertising codes, the UKGC is in a position to take regulatory action against licensees in the event of a breach. The ASA has set out that during the crisis it will have particular regard to adverts that trivialise gambling, refer “even indirectly” to indicators of problem gambling behaviour such as solitary play or a pre- occupation with gambling, or refer to gambling providing an escape from personal problems or financial concerns. Similarly, the UKGC is far more likely to take action against licensees who might be seen to be exploiting the crisis with advertising which touches on these themes. Advertisers will need to be creative to avoid these pitfalls, particularly if they want to show people gambling in a way which is consistent which social distancing rules, but could not be described as “solitary play”!


Melanie is a gambling regulatory lawyer with 13 years’ experience in the sector. Melanie advises on all aspects of gambling law including licence applications, compliance, advertising, licence reviews and changes of control. She has acted for a wide range of gambling operators including major online and land-based bookmakers and casinos, B2B game and software suppliers and start-ups. She also frequently advises operators of raffl es, prize competitions, free draws and social gaming products. Melanie has a particular interest in the use of new technology for gambling products and novel product ideas.


MAY/JUNE 2020 33


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