UK LEGAL COMMENT


past couple of years will have faced criticism for not limiting what their customers were ‘allowed’ to spend. So, whilst the Commission has not set such limits itself and neither has it set out in the LCCP that such limits must be set by operators, it is regularly penalising operators for not doing so. Indeed, the Commission has used this very wording in its published statements following regulatory action - as recently as January 2023 Vivaro Limited was criticised because “a customer was allowed to deposit and lose £4000 within a 4-day period”. When it comes to “so-called ‘affordability checks’”,


nobody is suggesting that the Commission has imposed these on a blanket basis for all customers. However, it is clear from the Commission’s comments in its enforcement reports and (currently not in force) customer interaction guidance that affordability checks are expected for any customers spending more than the average discretionary income. Again, looking at what is happening in practice, during compliance assessments operators are being criticised in cases where customers are identified who have spent more than the average discretionary income, without an affordability assessment having been conducted. It is clear that the Commission is seeking to bring its


messaging in line with the expected policy proposals in the White Paper. Adding to the recent remarks by Rhodes, in a February 16 public statement concerning Blue Star Planet Limited (operator of 10bet), the Commission commented that the operator’s “financial risk alerts in place at the time of the Assessment failed to give adequate consideration to average discretionary income data and failed to identify customers at the earliest opportunity.” Despite the change in language, it undoubtedly remains


the case that gambling levels that appear to be unaffordable should be a trigger for interaction with the customer. However, clarity is needed on what should be done following that interaction. In particular, it remains unclear whether the customer should be “allowed” to continue gambling and, if so, what level of evidence would be needed to allow that. Unfortunately, the recent comments from the Commission have not assisted operators to understand its expectations.


‘Strong appeal’


In contrast, the clarity of rules on gambling advertising has improved, following two recent decisions by the Advertising Standards Authority (ASA). The rulings relate to the recently updated requirement that gambling adverts must not have ‘strong appeal’ to those aged under 18. Following the new rule coming into force in October


2022, in December the ASA adjudicated on a Ladbrokes advert which featured three current Premiership footballers. It found this advert to be in breach of the rule, on the basis that the individuals featured were current high-profile players. In the more recent rulings, the ASA considered adverts using retired footballers Peter Crouch (in TV adverts for Paddy Power) and Micah Richards (in a tweet by Sky Bet). Both players had retired in 2019 and had not appeared in the England national team since 2010 and 2012 respectively, but had appeared in various television


programs since their retirement. The ASA considered the audience of these television programs along with the footballers’ social media following and other roles in reaching its decision that they would not be of ‘strong appeal’ to under 18s. Peter Crouch had no public account on TikTok,


Facebook or Twitch, had an un-used Instagram account and a Twitter account on which 0.46% of his followers were aged 13-17. This profile was considered by the ASA to be unlikely to make him of strong appeal to under 18s. His television appearances were also considered, in particular his appearance on The Masked Dancer which was a show found (using data from the Broadcaster’s Audience Research Board) to have been viewed by children 8.5m times. The ASA concluded that, despite the program’s broad family appeal, there was no evidence that Crouch’s role as a panellist made him ‘aspirational or influential’ to under 18s. Micah Richards similarly had social media accounts on


Instagram and Twitter, with only a small following by under 18s. He had appeared as a football pundit for BBC and Sky, but typically on shows scheduled later in the evening. He had also made a short appearance on the CBBC show ‘Football Academy’, but the ASA considered that in the context of his overall television profile, he was not likely to be of strong appeal to under 18s. These rulings are very helpful when it comes to considering the use of other sports personalities in adverts for gambling. We now know that the individual’s overall profile is highly relevant in addition to their sporting background and consideration should be given to their social media following, the audience of any television appearances and the nature of their other endorsements and roles. Whilst not a green light to use any sports personality other than current top footballers in advertising, these recent rulings demonstrate that the ASA is willing to take a reasonable and pragmatic approach where evidence demonstrates a player has a predominantly adult appeal.


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 raffles, 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.


MARCH 2023 31


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