Hot on the heels of the Committees of Advertising Practice’s new tougher standards of gambling advertising comes an Advertising Standards Authority ruling announced today (that can be downloaded below), concluding that a TV advertisement for PokerStars seen on 26 October 2017 portrayed gambling behaviour that was socially irresponsible and in the context of recklessness and therefore was in breach of the BCAP Code rules 17.3.1 and 17.3.8.
The ad (that can be viewed here) included a voice-over which said: “Here you are, the moment when bluffing is the only way to win, you’re freaking out kiddo, but think about all those times you bluffed yourself. Like the pull-up bar waiting for you to get back in-shape, that book you’re definitely going to read, your parents never ever had sex. Use that talent because if you can bluff yourself, you can bluff anyone. Pokerstars, you’re already a great poker player”.
The ASA states in its ruling that, while it was “acknowledged that big “all in” bluffs were a part of the game, we considered that the message that bluffing should be attempted without any experience of playing poker or any understanding of poker strategy portrayed gambling behaviour in the context of recklessness and in a manner that could lead to financial harm”.
In October 2014, the ASA published advice (that includes reference to a previous PokerStars.com ad) entitled “Betting and gaming: Enhanced personal qualities and links with toughness, recklessness and resilience” to the effect that gambling products should not:
- suggest that gambling can enhance personal qualities (for example that it can improve self-image or self-esteem, or is a way to gain control, superiority, recognition or admiration) or
- portray gambling in a context of toughness or link it to resilience or recklessness.
UPDATE: David Clifton is quoted on this ruling in an EGR Marketing article entitled “ASA calls PokerStars’ bluff” the two pages of which can be downloaded below.
His quoted comments are taken from his following overall assessment of the position:
- PokerStars will have been surprised by the ruling, particularly given Clearcast’s opinion that the ad portrayed bluffing as an important poker skill and that the context was not reckless.
- The ASA has disagreed with Clearcast, believing that the ad portrayed a socially irresponsible message (in the context of recklessness) that bluffing should be attempted without any experience of playing poker or any understanding of poker strategy. Having seen the ad, I can see how the ASA might have formed that view, especially in the context of the new tougher CAP gambling advertising guidance on mitigating potential harms associated with problem gambling, that came into force just 2 days before the PokerStars ruling, which I believe will have influenced their thinking.
- That guidance (originally published on 14 February 2018) states expressly in relation to BCAP Code 17.3.8 (i.e. “advertisements must not portray gambling in a context of toughness or link it to resilience or recklessness”): “Marketing communications should avoid portrayals that could be interpreted as reckless behaviour such as a character betting all their remaining chips”, which is exactly what is shown in the PokerStars ad.
- Some may think that the ASA should have made greater allowance for the fact that the PokerStars was screened in October last year before the new guidance was published. However, such a criticism would ignore the content of previous ASA/CAP advice entitled “Betting and gaming: Enhanced personal qualities and links with toughness, recklessness and resilience” given as long ago as October 2014 citing a 2008 ASA ruling against Pokerstars.com.
- The gambling advertising rules are most certainly open to interpretation but the Committees of Advertising Practice guidance is intended to guide not only the ASA but also advertisers, agencies and media owners on interpretation of the gambling sections of the UK Advertising Codes. It is not surprising that the boundaries of acceptable advertising are pushed but ads that are likely to reduce the perception of risk associated with gambling and/or have a potentially negative impact on vulnerable persons are always going to attract regulatory attention. It is important to bear in mind that that is not restricted to the regulatory attention of the ASA, but also that of the Gambling Commission, as is clear, for example, from the recent £350,000 fine imposed by the Commission on ElectraWorks for misleading advertising. Consistent with this, when welcoming the new CAP gambling advertising guidance, the Commission said: “We support any enforcement activity by the ASA against operators who do not comply and will not hesitate to take our own enforcement action against those who do not take their responsibilities seriously”.
- As happened here, one single complaint can serve to bring something to the attention of the ASA, of which it might otherwise have been unaware, as a result of which it identifies an additional issue of concern beyond that identified in the complaint. I think such an approach is justified, as long as the ASA does not start a formal investigation into every complaint that it receives, and it does not do that. It says on its website, for example:
- “With any complaint the ASA receives, our focus is on providing a proportionate and fair process for all involved. We don’t play a numbers game – just one complaint can prompt us to take action if there appears to be a problem under the advertising rules. We take all complaints seriously but we look at whether or not the rules have been broken rather than simply basing our decisions on the number of complaints an ad might prompt” and
- “It’s worth noting that around 80% of complaints don’t raise any problems under our rules, allowing us to resolve the issue without the need to take action against an advertiser”.