Upheld – ASA consider Gary Neville and Anthony Joshua to be of strong appeal to under-18s

On 1 October 2022, a new gambling advertising rule was introduced (a summary of which can be read here) which strengthened the obligations on gambling operators to ensure the content of their ads is not appealing to under 18s, especially by reflecting or being associated with youth culture. At the time, questions were raised as to what a “strong appeal” really means, but the emergence of a number of rulings since then has provided useful insight into what the Advertising Standards Authority (the “ASA”) is likely to consider falling within scope. The ASA has upheld rulings against adverts that featured “star” footballers (see our article here), but didn’t consider other sports stars, including Peter Crouch, Micah Richards (see here) or Chris Eubank Jr. (see here), to appeal strongly to young people.

In the latest examples of the new strong appeal rules in action, on 18 October 2023 the ASA issued a ruling which was upheld concerning a promoted tweet for Sky Bet (the “ad”), and another ruling on 1 November 2023 which was upheld concerning three tweets for Betfred (the “ads”).

The ads were found 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 they included an individual likely to be of strong appeal to those under 18. However, these rulings have not been taken lightly, with Flutter Entertainment and Betfred heavily criticising them.

Gary Neville for Sky Bet

The advert

Posted on 9 February 2023, the promoted tweet for Sky Bet in question contained an embedded video clip from The Overlap football podcast, featuring Gary Neville discussing which team might win the Premier League. The Sky Bet logo appeared intermittently throughout the video, and on-screen text at the end stated, “BROUGHT TO YOU BY SKY BET,” with the BeGambleAware logo appearing after that. The text in the caption stated, “Is Gary changing his title prediction? [eyes emoji] Thanks to Man City, It seems @GNev2 is having a change of heart [sweat grinning emoji][trophy emoji] Part three of The Overlap Fan Debate is out now [television emoji].”

The ASA challenged whether the ad breached the Code by including an individual (in this case, Gary Neville) who was likely to be of strong appeal to those under 18 years of age.

The response and the ruling

Sky Bet responded by saying that they had worked extensively with CAP to ensure their ads complied with the requirements of the Joint CAP and B/CAP Advertising Guidance “Gambling and lotteries advertising: protecting under-18s” (“the B/CAP Guidance”). They emphasised their firm belief that Gary Neville did not hold strong appeal to under-18s, putting forward a number of reasons as to why they held this strong belief, some of which include:

• The Overlap series was distinctly in an adult tone and did not feature any content of childish nature.
• The subjects debated in the episode had been judged in previous ASA rulings not to be of strong appeal to children, pointing out that just 1.2% of The Overlap’s audience was aged 13-17, with that figure dropping to 0.5% for the advertised episode.
• They believed that met the B/CAP Guidance’s definition of “long retired” and therefore he was at low risk of strongly appealing to under-18s.
• They assessed his social media profile as of March 2023, and found that 1% of his 5,504,262 Twitter/X followers were aged 13-17. Assuming the 1% were all UK-based, they said that equated to just 0.39% of the UK’s total population of under-18s. They contrasted that with the 53% of his followers who were aged 25-34, and came to the conclusion that Neville’s media profile was consistent with his mature age.
• Sky Bet believed Neville was intrinsically connected to political matters in the public consciousness as he was well-known for being outspoken about his political views and used his social media platforms to address a broad range of social justice and political matters. They believed that this would be unlikely to appeal to children who could be disinterested in such matters.
• Although TikTok and Facebook could not disclose under-18s audience demographics on Neville’s accounts, Sky Bet said that he did not have active personal accounts on YouTube or Twitch, and emphasised that only 5% of his 1.6 million Instagram followers were aged 13-17.
• They pointed out that the football-themed TV shows that Neville has appeared on were scheduled later in the evening which they argued reduced the likelihood that they were regularly watched by children, providing Broadcaster’s Audience Research Board (“BARB”) data that they said highlighted the overwhelmingly adult appeal of those programmes.
• Sky Bet said his current and previous endorsements were few and clearly targeted at an adult audience (for example, his partnership with Castore and columns in The Telegraph).
• They said that Neville had been a brand ambassador for Sky Bet since 2018 and was widely recognised for his connection to their products, which were solely targeted at adults.
• Twitter/X supported these arguments by expressing that the ad did not breach their current policies and they had not received any subsequent complaints regarding the ad.

Despite these arguments and justifications, the ASA upheld the ruling that the ad was in breach of the CAP Code. They acknowledged that the ad was targeted at over-25s, but the ad appeared in a medium where under-18s could not be entirely excluded from the audience. The B/CAP Guidance classed retired footballers who had moved into punditry as likely to be of ‘moderate risk’ of strong appeal to under-18s and stated that they would be assessed on the basis of their social and other media profile, and therefore assessed the appeal of Neville to under-18s on that basis.

They did acknowledge that he has been retired from Premier League football since 2011, that some of the programmes he appeared on were after 9pm and the topics in discussion may not be of interest to under-18s, and that his commercial partnerships were unlikely to appeal to a younger audience. However, the deciding factor was his social media profile; despite the argument that his followers on Instagram and Twitter/X made up a small proportion of his total followers, amounting to at least 135,000 followers, the ASA calculated that this was a significant number in absolute terms. Therefore, they concluded that, due to such a large number of his social media followers being under 18, he was of inherent strong appeal to under-18s and therefore the ad was “irresponsible and breached the Code.”

Anthony Joshua for Betfred

The adverts

The ads in question were comprised of three tweets. These were designed to promote Anthony Joshua’s upcoming fight, seen in March and April this year, and talked about the boxer’s diet, training, and mental preparation for his upcoming fight.

Similar to the Gary Neville tweet, the ASA raised concerns as to whether Joshua was likely to be of strong appeal to under-18s, and therefore breached the code.

The response and the ruling

Much like Sky Bet, Betfred hit back at this challenge from the ASA, asserting that they had carried out a “thorough assessment of Anthony Joshua against the CAP guidance on gambling and lotteries advertising” before concluding that he was not of strong appeal to the under-18s. We highlight some of their reasons below:

• Betfred social media channels were “age-gated” to those who were aged 18 and over, and where a platform did not have these robust age verifications, campaigns were targeted at “over-25s and over and who had relative interests.”
• Similar to Sky Bet’s justification for the Gary Neville tweet, Betfred recognised that Joshua was a “star” in the boxing world, but that he was nearing the end of his sporting career, having not held a championship title since 2021, and therefore, as per CAP guidance, is a ‘low risk’ appeal to children.
• Betfred highlighted that the boxer had not appeared in reality TV, and pointed out that, much like Sky Bet’s endorsements argument in justifying their Gary Neville tweet, less than 1% of each of the brands Joshua has worked with were followed by under-18s on social media.
• Betfred acknowledged the boxer’s significant social media presence, but followed in the footsteps of Sky Bet in bringing to the ASA’s attention the minimal number of under-18s that made up the total number of Joshua’s followers, with social media data showing that they made up just 3.85% of his total followers across social media platforms.
• Drawing on CAP guidance, they believed boxing to be an adult-oriented sport and was therefore unlikely to be of strong appeal to under-18s.

The ASA considered the above reasoning, but ultimately upheld the ruling. Although they acknowledged that boxing was adult-oriented, and that Joshua had not held a championship title since 2021, they still considered him to be a high profile “star” in the sport, having been a two-time former unified heavyweight champion of the world. The ASA did recognise that most of the programmes that the boxer appeared on were targeted at an adult audience. They also considered that most of his commercial relationships were with adult-focused brands, however, they noted his deals that are deemed to be popular amongst under-18s, such as JD Sports and Beats By Dre. Joshua was therefore considered to be of “moderate risk” in appealing to under-18s, based on his considerable media appearances and marketability.

In assessing his social media profiles, although Betfred argued that the 3.85% under-18 audience was a low percentage, the ASA highlighted that this amounted to 1.1 million under-18s and came to the conclusion that this was a substantially high number. Betfred argued that only UK data should be considered; they were unable to provide UK specific data for these social media platforms, but the ASA argued that, even if the 3.85% worldwide figure for Joshua’s total under-18s followers mirrored the UK-specific percentage as Betfred states, this would still amount to 280,000 under-18 followers in the UK, which the ASA considered to be a significant number in absolute terms. Due to the boxer’s significant under-18 following on social media, Joshua was deemed to be of strong appeal to under-18s, and therefore the ads breached CAP Code (Edition 12) rules 16.1, 16.3 and 16.3.12 (Gambling).

Next steps

The ASA in both cases stated that the Sky Bet ad and the Betfred ads must not appear again in their current form.

Flutter Entertainment, the parent company of Sky Bet, hit back at the Sky Bet ruling, stating that the decision to rule that Gary Neville would appeal to under-18s defied “precedent” – with previous rulings regarding ads featuring football pundits Peter Crouch and Micah Richards not being upheld as of strong appeal to children – and “common sense.” A spokesman for Flutter said that they will be seeking an independent review of the case while they consider the options that are open to them, also emphasising that the “ASA did not receive a single complaint from the public or wider stakeholders about the social media post in question.”

Mark Pearson, a Betfred spokesperson, also hit back at the ASA for their Betfred ruling, affirming that the company “believes that CAP Guidance was followed at all times.” presenting similar arguments to that of Flutter Entertainment that they were satisfied that the boxer was not of strong appeal to under-18s, and that they also had not received a single complaint from the public with regards to their association with Joshua. They too will be seeking an independent review of what they describe as an “unjust decision.”