UK LEGAL COMMENT
Retweets and shares
It is not just a gambling operator’s own social media content and adverts that are covered by advertising rules. Retweets, shares of third-party posts, publicly visible responses or “likes” can also be captured. An operator must ensure that posts it interacts with are compliant, as they can be considered to be “adopted and incorporated” into the operator’s own marketing communications. Some things to be wary of sharing or retweeting include messages featuring images or videos that might be particularly appealing to children, which feature anyone aged under 25, or which might be considered to be offensive or misleading. An example of the ASA holding a company liable for
retweets is its action against
192.com. This company was found to have “incorporated and adopted” material on social media which stated that it was the most popular online directory (a claim which was not substantiated) by retweeting and sharing a series of user-generated posts. Each retweet was considered a marketing communication in and of itself. The ASA stated in its ruling that this analysis could also apply to commenting on or simply liking a user’s post. This means that employees of a gambling operator must have a full understanding of the advertising rules before being given any control over the company’s social media accounts.
Celebrities and infl uencers
Celebrities, sports stars and social media infl uencers are often used by advertisers to engage with target audiences, as their opinions are trusted by their fans. If an operator seeks to feature a celebrity or infl uencer in an advert, they must ensure that the individual is aged 25 or over and also that they look at least 25 years of age. Operators also need to ensure all advertising carried out by such partners is compliant, applying similar principles to when working with advertising affi liates, as the operator is responsible for ensuring those who advertise on their behalf comply with the various advertising rules. Under the LCCP, gambling operators are responsible for the actions of third-parties with whom they contract. In their agreements with anyone who will advertise on their behalf, operators must require the third-party to conduct themselves as if bound by the relevant advertising codes and retain the ability to terminate the agreement if they do not comply with them. Another key point is that the CAP Code requires
marketing communications published by infl uencers to be obviously identifi able as such. Social media content can be much more ambiguous than a TV advert, so operators should always require that content posted by the celebrity / infl uencer is clearly labelled as a marketing communication, for example by requiring in the contract that they use the word “Ad” in the title of their post. The ASA has made it clear that advertisers who do not comply with this rule can be referred to Trading Standards or the CMA, who have the power to impose fi nes. Operators should also consider the demographic of the celebrity/infl uencer’s followers, as the CAP and ASA
guidance prohibits the targeting of groups who are likely to be under the age of 18. Analysing audience data can be a way to check what percentage of a potential partner’s followers are under 18 (bearing in mind the 25% rule mentioned above). Adding to this, earlier this year the BGC introduced
restrictions on the ability of gambling operators to use football clubs’ social media accounts to promote gambling offers. A code of conduct bans clubs from linking to gambling operators’ websites or displaying odds or bonus offers in their social media posts unless they are age gated.
Conclusion
Advertising gambling on social media can be a risky business. As it becomes an increasingly prominent form of advertising, it will be important that gambling operators have processes in place to monitor and review the wide range of activity which can be captured by the rules.
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.
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