UK LEGAL COMMENT
that there are elements of skill involved in participation”. It considers that it would be acceptable to show someone using skill while playing poker and also that it would be acceptable to use messaging relating to communities. However, adverts should not suggest that playing “can make someone part of a wider community based on this attribute”. It is quite unclear where this line would be drawn, but it appears that what needs to be avoided is showing a player gaining access to a poker community purely due to demonstrating sufficient skill at the game.
Impulsiveness and urgency
The additions to the guidance in this area build on the existing restrictions on “Bet Now!” type messaging, on the basis that this type of messaging has been found to be a particular risk for problem gambling behaviour. The ASA now considers that adverts are likely to encourage irresponsible gambling if they: • emphasise the immediacy of an event, or • present a time limited offer and emphasise the need to participate before the odds change. The ASA has acknowledged that “simply stating the time of an event is not likely to be a problem” and that the new guidance does not prohibit gambling operators from publicising live odds or in-play betting.
Trivialisation
Additions have also been made to the existing guidance which restricts advertising which trivialise gambling, or create the impression that the decision to gamble should be taken lightly. The new additions are that gambling adverts should not: • use humour or light-heartedness specifically to play down the risks of gambling, or
• use unrealistic portrayals of winners (for example, characters winning first time or easily). In relation to the use of humour, the new provision should not be taken to prevent gambling operators from using humour or light-heartedness in their adverts at all. The key is to avoid using humour for the specific purpose of downplaying risks. The ASA further elaborates on the distinction in its review of consultation responses, stating that advertisers should “avoid depictions of humorous or light-hearted ways of making a betting selection and humorous references that make light of the risks associated with participation”. This is still quite restrictive and may prevent, for example, a character being shown choosing their horse for the Grand National based on it having a humorous name. On the issue of unrealistic portrayals of winners, this
new provision may be quite difficult to interpret. For example, is it necessary for an advert to show someone losing their stake on a series of roulette spins, before they can be shown winning? It does not seem that this is the intention, rather the ASA indicates that “advertisers should avoid messaging or content…that emphasises how little effort, time or outlay is required to win a significant amount or prize”. This provision relates
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to both the rule that advertising must be socially responsible, and that it must not be misleading. The rewards of gambling should therefore be presented in a way that is “reasonable and indicative”.
Financial concerns
The ASA has made some additions to what was proposed in its original consultation document based on responses received from students, on the basis that this group is likely to be under particular financial pressure. The revisions to the guidance in this area will state that advertisers should “exercise caution” when: • obviously depicting groups that are likely to experience financial pressures, such as students,
• depicting winners, avoiding the implication that a character has won easily, or
• using approaches that take advantage of people’s hopes of winning or replicating the success depicted. These provisions do not prevent advertisers from depicting people experiencing gambling wins, however they add to the new guidance on trivialisation and, together, make depicting people winning a risky area. As in relation to the trivialisation guidance, advertisers are not completely prohibited from showing wins but should avoid emphasising how little time, effort or outlay was required. However, avoiding emphasising these matters does not mean that advertisers must specifically emphasise that significant time, effort or outlay was involved!
Further amendments coming up
The current updates focussed on the appeal of adverts to adults experiencing or at risk of problem gambling. The ASA continues to evaluate responses to its consultation exercise on the additional topic of the appeal of content to under 18s and expects to publish further revisions to the guidance in Q4 2021. This will include new provisions on the scheduling, placement and targetting of adverts.
Melanie Ellis, Northridge Law LLP, August 2021
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.
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