ASA Ruling on Hillside (UK Sports) ENC t/a bet365
In the latest example of the new strong appeal rules in action, on 14 June 2023 the Advertising Standards Authority (the “ASA”) issued a ruling which was not upheld concerning a promoted tweet for Hillside (UK Sports) ENC (trading as bet365) (“bet365”). The ad in question was found not to be in breach of the UK Code of Non-broadcast Advertising (“CAP Code”) rules related to gambling when challenged by the ASA as to whether the ad included an individual likely to be of strong appeal to those under 18.
In January 2023, a promoted tweet containing an image featuring professional boxer Chris Eubank Jr. was seen for bet365. The caption read “It’s fight week! Chris Eubank Jr and Liam Smith will be Unleashed in Manchester. Click here for latest odds”.
In their response, bet365 explained that their social media channels were age-gated to those above 18, and that they had ensured their targeted campaigns were only served to users identified as over 25 and with relevant interests. bet365 responded to the complaint with the following arguments:
- bet365 had exclusion lists in place on all of the social media channels used to prevent self-excluded or high-risk users from receiving targeted content.
- bet365 stated that they had robust review processes in place and worked with an independent compliance team to exclude high-risk personalities or content from marketing communications in line with ASA guidelines. This included automatically excluding individuals considered to have an inherent strong appeal, such as European top flight footballers, from their marketing.
- bet365 maintained that they had conducted a risk-assessment on Chris Eubank Jr., determining his appeal to under-18s to be low to moderate risk due to boxing being an adult-oriented sport.
- With regards to his other media projects, Chris Eubank Jr.’s appearance on Celebrity Gogglebox was considered low risk, airing after 9PM and only making brief appearances alongside his father, Chris Eubank. bet365 cited a previous ASA ruling, which concluded that Celebrity Gogglebox was “primarily aimed at an adult audience”.
- Chris Eubank Jr.s’ social media profiles were assessed before the ad was published. Details of his audience demographic were provided, with 0.1% of his followers on Facebook, 0.3% on Twitter and 0.4% on Instagram, being under 18. A notable 31.7% of Chris Eubank Jr.’s followers on TikTok were found to be under 18, however bet365 countered this by stating they did not have a TikTok profile or presence, and therefore these followers would not see any bet365 content.
- bet365 provided Broadcasters’ Audience Research Board (“BARB”) viewing data evidencing that, of the 345,000 viewers of the Chris Eubank Jr. and Liam Smith boxing match, none were under 24. Of the viewers of the match uploaded to YouTube, only 0.5% were registered as under 18.
- bet365 stated that all ads were individually risk-assessed, and they were confident that Chris Eubank Jr. and the ad didn't strongly appeal to under 18s. Twitter further confirmed that the promoted tweet did not breach their ad policies, and that in the event the complaint was upheld, the ad would be removed.
Under rule 16.3.12 of the CAP Code, marketing communications for gambling products must not be likely to strongly appeal to children or young persons, especially by reflecting or being associated with youth culture (you can read more about the new strong appeal rules in our Law-Now article here). The ASA has previously noted that sportspeople involved in clearly adult-oriented sports with significant social media and general profiles, making them well known to under 18s, are considered to be moderate risk within CAP guidance.
The ASA considered boxing to be an “adult-oriented” sport and was therefore unlikely to be of strong inherent appeal to under 18s. On that basis, the complaint was not upheld, further citing the following:
- Viewing data for the boxing match on BARB and YouTube showed primarily adult viewership.
- Assessing Chris Eubank Jr.’s appeal, his social media profiles had a substantial following, but the number of followers under 18 was relatively small compared to the overall number of followers across platforms.
- His appearance on Celebrity Gogglebox was deemed low risk since it aired after 9PM and was primarily aimed at adults. The limited duration of his appearance was also considered unlikely to significantly affect his appeal to under-18s.
Considering the presentation of Chris Eubank Jr. in the ad, the ASA concluded that it would not strongly attract the attention of under-18s nor have a strong appeal to them. As a result, the ad was found not to be in breach of the CAP Code rules related to gambling advertising and no further action was necessary.
Since the introduction of the new strong appeal rules, the gradual emergence of rulings has provided helpful insight into the ASA’s perception of sports personalities that have a strong appeal to under-18s. Whilst professional footballers have been deemed to have a strong appeal to under-18s (read more here) and boxing stars less so, all rulings have highlighted the high standard of evidence required to rebut a complaint. Even though the ASA has found boxing to be more “adult-orientated”, and therefore low or moderate risk, the detailed evidence on audience data and social media demographics provided by bet365 in this ruling highlights how far operators need to go to demonstrate their due diligence. As more rulings emerge, it will be interesting to see where the balance sits for the evidence required to respond to a complaint for sports considered as having lower vs. high appeal.
In any event, the ASA has made it clear that it expects advertisers and their agencies to combine various targeting tools as opposed to solely relying on age data to ensure that age-restricted ads are served only to an adult audience. Given the obligation on advertisers to evidence their assessment of all elements of their content that make up the ad, operators should ensure their review is well documented in case a complaint is raised to the ASA, especially where under-18s cannot be entirely excluded from the audience.
Co-authored by Hanisha Kanani