How to make sure your marketing doesn’t land you in regulatory hot water

Advertising and marketing of online betting and gaming products in the UK has drawn the attention of regulators and competition authorities alike. David Schollenberger of Healys sets out the advertising and promotions pitfalls that could land operators in regulatory hot water.

Competition for customers is robust, and online gaming and betting companies have responded by launching increasingly aggressive campaigns to keep or increase their market share.

But there are strict rules about allowable content and there are a range of regulators that oversee gambling advertising. This article provides an overview of the relevant regulators and some of their key areas of concern.

Regulators and applicable advertising regulation and codes
Prior to the Gambling Act 2005, advertising in the UK for land-based casinos and betting shops was prohibited. The Gambling Act 2005 liberalised this and has enabled gambling advertising, to the extent it is socially responsible, protects against personal and social harm and complies with relevant UK advertising codes.

The Gambling (Licensing and Advertising) Act of 2014 amended the Gambling Act 2005 so that now only licensees of the UK Gambling Commission may advertise in the UK.

New gambling rules were added to the UK Advertising Codes in 2007 and are administered by the Advertising Standards Authority (ASA). The rules address permitted and prohibited content and placement.

Gaming and betting operators holding operating licences issued by the UK Gambling Commission are bound by the licence conditions and codes of practice (LCCP).

The LLCP states that its licensees must comply with the advertising codes of practice issued by the Committee of Advertising Practice (CAP) for non-broadcast advertising and the Broadcast Committee of Advertising Practice (BCAP) for broadcast advertising. 

Licensees are also required to follow any relevant industry code of practice on advertising, in particular the Gambling Industry Code for Socially Responsible Advertising.

Below are some of the main areas where igaming firms are falling foul of regulations.

CAP code violations

Misleading customers
One of the biggest pitfalls for advertisers in igaming is not presenting promotions in a clear and unambiguous manner and explaining significant conditions upfront.

The CAP code provides that all marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where omission of such conditions or information is likely to mislead. 

Significant conditions are explained to include: how to participate; free-entry route explanation; start date; closing date; nature and number of prizes and gifts; restrictions; availability; and the promoter’s name and address.

Withholding prizes
Under CAP Code Rule 8.27, withholding prizes is only justified if participants have not met the qualifying criteria set out clearly in the rules of the promotion. 

Operators should be mindful not to have terms and conditions allowing them to withhold prizes for any reason at their discretion and particularly not to deny participants prizes where they have met the qualifying criteria.

Linking gambling to sexual success
The CAP code requires that marketing communications for gambling must not link gambling to seduction, sexual success or enhanced attractiveness.

In the ASA Ruling on bet-at-home Internet Ltd, 13 April, 2016, the ASA reviewed a tweet by BetPromotions4U, which stated “It’s your lucky day!” and featured a close up of a woman pulling her trousers down. The text on her underwear read, “If you can read this it’s your lucky day”.

The tweet linked to bet-at-home. The ASA held that the image of a woman pulling her trousers down and the text on her underwear linked gambling with sexual success and concluded that the ad breached the Code.

ASA Rulings

Misleading customers
There are a number of ASA cases where the ASA has held that advertising and promotions were misleading. In the ASA ruling on Profitable Play Ltd dated 17 August, 2011, the ASA found that the offer made of a prize implied that it was a guaranteed gift and not a prize, and was therefore misleading.

In the ASA Ruling on Unibet (International) Ltd of 7 January, 2015, the ASA held that an ad was misleading because the ad claimed the bet was “risk-free” and that there was not a fully disclosed condition that further bets at specified odds must be placed in order to withdraw the refunded stake.

In the ASA Ruling on Profitable Play Ltd trading as Starspins.com, 30 March, 2016, an ad that claimed that a referral of a friend would result in a £20 bonus did not clearly disclose that the friend being referred would need to wager a total of £800 in order for the person making the referral to receive the £20 bonus. The ad was therefore found to be misleading.

Terms and conditions
In the ASA Ruling on Gala Coral Group dated 11 July, 2012, the ASA held that Gala Coral did not fully disclose that to be entitled to the bonus there was a requirement that the customer played through their deposit amount five times.

Because there was not full disclosure of all significant conditions in the initial marketing materials prior to purchase, the ad was considered misleading.

Changing terms and conditions must not be done retrospectively during the period of the promotion. Terms and conditions allowing the promoter to do the same should be avoided.

In the ASA Ruling of Meeeeet.com, 3 October, 2012, the ASA reviewed a complaint that the competition rules for a photo contest, which originally provided that the person receiving the largest number of fan votes won the competition, was changed during the promotion to the winner being selected by best entry as judged by the promoter.

The ASA held that the change in conditions of winning the competition had significantly changed and altered the basis of entry, the competition had not been conducted equitably and efficiently and had caused unnecessary disappointment to entrants. The competition had therefore breached the code.

Gambling ads with appeal to children
Gambling ads may not be directed at or appeal to children under the CAP code. Rule 16.1 states that marketing communications for gambling must be socially responsible, with particular regard to the need to protect children, young persons and other vulnerable persons from being harmed or exploited. 

Gambling ads should avoid using childish cartoon imagery or describing the games in childlike terms. 

This is an area of particular sensitivity for the ASA.

In the ASA Ruling on Geo 24 UK Ltd of 9 December, 2015, a website of Geo 24 Ltd featured cartoon graphics of a pirate with sunglasses and a large gem-studded beard and a goat with gold teeth and a chain around its neck. 

The promotion stated GoldBeard’s Booty Pirates Join Da Crew & Find Ye Fortune”. The ASA found that the game was likely to be of particular appeal to those under 18 in that the characters were not adult in nature, as animated animals and pirate characters were relatively common within children’s programming and popular culture.

In the ASA Ruling on Ever Adventure IOM Ltd, 30 September, 2015, a website promoting an online casino had a cartoon-like image of a meerkat at the top of the page and below that a number of games, including Piggy Payout, Fluffy Favourites, Legend of the Fairies and Farmania, all with cartoon-like images.

The ASA ruled that the overall theme of the website was childlike and that it breached the code by being likely to appeal to children.

Using persons under 25 in gambling advertising
Gambling adverts may not feature persons under 25 years of age. In the ASA Ruling on Ladbrokes Betting & Gaming Ltd, 11 November, 2015, an email ad featured a photo of Memphis Depay, sitting on a football pitch. The ad stated “MONEY BACK OFFER… Don’t miss out! BET NOW!” 

The ASA held that the code was breached because Memphis Depay was under 25 years of age and played a significant role in the marketing communication.

Similarly, in the ASA Ruling on Coral Interactive (Gibraltar) Ltd dated 28 October, 2015, a Coral Interactive ad featured golfer Jordan Spieth holding a trophy. The ad breached the code because he was under 25 years of age.

William Hill has also been found in breach of the code in relation to advertising using children.  In the ASA Ruling on WHG (International) Ltd, 17 Jun, 2015, an ad on a WillHillBet Twitter feed featured the image of a child, jumping in the air will holding a golf club and ball.

The tweet stated “#TheMasters has started! #yippee”.  Because a child was featured in the ad, it was held to be a breach of the code.

Proper review of marketing communications vital
The number of gambling adverts being published in various forms of media,  which in addition to broadcast and print media now includes emails, websites and social media, has increased dramatically over the past several years.

Accordingly, increasing numbers of complaints are being sent to the ASA and increasing numbers of rulings adverse to operators being rendered. Operators must be mindful of the importance of having a proper review of all forms of marketing communications, advertising and promotions.

Operators not only risk sanctions from the ASA but also sanctions from the Gambling Commission on their operating licence.  External review of advertising and promotions by legal advisers knowledgeable in the codes and ASA rulings in relation to gambling is recommended from time to time to give extra assurance.

David Schollenberger is a partner and head of gaming and leisure at Healys LLP solicitors.