A "strong" shift for gambling advertising rules

On 1 October 2022, a new gambling advertising rule came into force alongside new guidance, which strengthens the obligations on gambling operators to ensure the content of their ads is not appealing to under 18s. The change follows a consultation launched two years ago by the Committee of Advertising Practice (“CAP”) and introduces measures to ensure that gambling adverts cannot be of strong appeal to children and young people (“New Rules”). On 10 November 2022, CAP also released new guidance for advertisers on how to target age-restricted ads responsibly online.

Out with the old / in with the New Rules

The previous rule provided by the UK Code of Non-Broadcast Advertising (“CAP Code”) and the UK Code of Broadcast Advertising (“BCAP Code”) stated that gambling adverts must not be of “particular appeal” to under 18s. The rules also (and still) provide that gambling adverts are prohibited from featuring under-25s and exploiting the susceptibilities, aspirations, inexperience or lack of knowledge of children.

The New Rules, which entered into force on 1 October 2022, require that gambling ads must not “be likely to be of strong appeal to children or young persons, especially by reflecting or being associated with youth culture”. This change of language effectively removes the element of relativity from the assessment of whether gambling adverts appeal to children. Whilst the old rules would lead the Advertising Standards Authority (“ASA”) to consider whether a gambling advert had more of an appeal to children or young people than adults, the key question now is whether an advert simply appeals at all to children or young people, regardless of its appeal to other groups.

Impact of the New Rules

The New Rules effectively prohibit content that has a significant level of appeal to under-18s (including imagery, themes and characters), regardless of how it is viewed by adults. The New Rules capture certain sports related content, video games and other media personalities, which may not have been previously covered by the old rules.

The ASA has stated that freely accessible adverts will not be able to use:

1. Topflight footballers and footballers with a considerable following among under-18s on social media.
2. All sportspeople well-known to under-18s, including sportspeople with a considerable volume of under-18 followers on social media.
3. References to video game content and gameplay popular with under-18s.
4. Stars from reality shows popular with under-18s, such as Love Island.

The New Rules will now prompt operators to scrutinise further who they’re working with and what content features in their adverts. This was particularly topical during the Qatar FIFA World Cup, and we have observed a material change in the types of marketing and sponsorships we would historically see from the industry around major football tournaments.

Some exemptions apply, including an exemption in relation to media where under 18s can be excluded from the audience of the ad. In practice, this can likely only be relied upon where robust age verification processes are in place.

What does “strong appeal” really mean?

Unlike the existing targeting rules, which draw a line at an audience of 25% or more young people, the New Rules do not provide for a specific number of children or young people who must make up the relevant audience to be caught by the New Rules. The key question for the New Rules is not related to proportions or relativity, but whether elements of an advert appeal to children and young people at all and there is no specific percentage or absolute figure that can be applied to that assessment.

The “25% test” which applies in relation to the targeting of gambling advertising (see more on this below) is not relevant when assessing whether the content of an ad is likely to have strong appeal to children. The bar is likely to be much lower for the strong appeal test. CAP has said: “if data from one or more of the sources suggests under-18s are present at more than very low levels in the audience, there is a significant risk that ASA will uphold a complaint.”

It is understood that the ASA will conduct a holistic assessment of an advert and that social media follower demographics would be one of a range of things that would factor into the overall assessment of a personality’s appeal to under-18s. When considering whether 5% of a person’s following would indicate a strong appeal to children or young people, it would likely depend on how many followers that person actually has. For example, 5% of 20 million people indicates that one million children follow that person on social media. In comparison, 5% of 1,000 followers amounts to only fifty, and so that person may be considered less likely to have a strong appeal to children or young people.

Age-restricted ads

Building on its revised guidance from 2021, CAP has published new guidance outlining how advertisers can use tools online and on social media platforms to target their age-restricted marketing communications responsibly. This includes ads for alcohol, cosmetic interventions and gambling (which should not be directed at people under 18) and high sugar foods, medicines and society lotteries (which should not be directed at people under 16). The rules require that such ads should not appear alongside media where children and/or young people form more than 25% of the audience.

Advertisers are responsible for ensuring age-restricted campaigns are targeted appropriately in line with these rules and that appropriate tools are used to manage this. CAP expects that advertisers should consider all available tools to target their campaign appropriately and that all other parties involved are aware of the restrictions. The new guidance provides for principles-based checklists and a bite-sized infographic to help advertisers and agencies better understand how to comply:

1. Media choice: This explains how the use of exclusion and/or inclusion lists can help to direct ads towards age-appropriate media and away from media popular with or intended for children and young people.
2. Age-based targeting tools: This sets out the range of tools available to direct ads away from children and young people and towards a legitimate adult audience.
3. Working with content creators and influencers: This emphasises that advertisers should take care when working with influencers to check whether they have a significant following of children and whether they have the means to prevent children and young people from seeing certain posts.
4. Managing social media posts: This explains how to place additional restrictions on who can see certain posts by targeting existing followers or logged-in users.
5. Performance monitoring: This highlights the importance of monitoring a campaign by reviewing data, where possible, to improve the targeting of future ads.

Next Steps

The ASA released its “100 Children Report” (“Report”) last month, providing an insight into UK children’s real-world device use and online presence. The study found that of the 11,424 occasions when an online ad was served to the personal devices of the children’s panel, 3.8% related to an alcohol, gambling or other age-restricted ad. 0.6% of the total occasions when an ad was served were considered likely in breach of the UK targeting rules. The ASA stated that it followed up with the advertisers of these ads as a matter of priority following the release of the Report. The ASA made clear that it expects advertisers and their agencies to use a combination of targeting tools and not rely solely on age data to ensure they’re doing everything they can to serve their age-restricted ads to an adult audience and away from a child audience.

In respect of the New Rules, if a complaint is raised, the ASA will expect an operator to show that they have assessed all the elements of content that make up the advert and that they hold sufficient evidence to demonstrate compliance with the New Rules. Licensed operators must comply with the UK Advertising Codes as part of their licence conditions under the Gambling Act 2005, which now captures the New Rules.

Operators should therefore ensure they have comprehensively documented their review of relevant advertising materials alongside the New Rules if they intend to launch content that could fall within scope.

Operators should note the following for its advertising material:

1. Operators are advised to ensure their marketing sign-off processes include an assessment of all the content included in the creative (e.g. characters, personality, graphics etc).
2. Content for under-18s, such as characters from children’s media or overtly child-related themes, is prohibited.
3. Consider the wider context of content included in ads: Where does a character originate from? What is a personality known for outside the context of the advert? What audience does this influencer appeal to, particularly as a result of current and more recent activities?
4. In what way does a personality that features in an advert appeal to his or her audience? Could the individual or content be taken to be of aspirational nature to under-18s (e.g. a captain of a UK national sports team)?
5. Use metrics associated with the relevant personalities, roles and activities and assess audience data. For example, what is the audience data for the TV show that the personality is famous for? What does analytic data for the brand ambassador’s social media account reveal?

The first ASA ruling in relation to the New Rules came on 21 December 2022, in which the ASA reviewed an advertisement from Ladbrokes that included Premier League footballers likely to appeal to children. The advertisement was in the form of a promoted tweet which contained an embedded video showing Philippe Coutinho, Jesse Lingard and Kalidou Koulibaly, along with a question of where these players were likely to transfer over the summer.

In their defence, Ladbrokes claimed that the promotional tweet was to be used as brand engagement rather than an advert itself, and maintained that there were no promotional offers or links back to the Ladbrokes’ website within the tweet. They acknowledged that their marketing team had fully considered the New Rules when publishing the tweet, and maintained that they had been prudent in using all available targeting and age gating technology, ensuring that the tweet was not aimed at anyone under 25 (higher than the requirement of the New Rules which is only to under-18s). Data obtained from Twitter showed that 0% of the audience of the tweet were under 20 years old.

Despite Ladbrokes claims, the ASA upheld the ruling against Ladbrokes and found that the promotional tweet was in breach of the CAP Code. It reiterated that Premier League footballers were considered high risk, as stated in the CAP guidance. The ASA went further in explaining that football is an activity in which a large number of under-18s partake on a regular basis, and which garners a significant level of interest amongst young people. It added that there is a “highly developed infrastructure” governing the participation of under-18s in football and certain media dedicated to appeal to under-18s. The ASA noted that the footballers chosen were all current and well known to those who follow the Premier League. All three have also played international football, making them more likely to be of a strong appeal to under-18s.

The ASA did advise, however, that it would have considered the advertisement to be acceptable had it appeared in a medium in which under-18s could have been entirely excluded from the audience.

The ASA have advised Ladbrokes that the promotional tweet must not appear in its current form, and emphasised that the operator must not include a person or character who had strong appeal to those under 18 years of age again.

Co-authored by Coralie Barker