Fast approaching changes to the advertising and marketing provisions of the Gambling Commission’s Licence Conditions & Codes of Practice (“LCCP”) will mean that operators licensed by the Commission who breach advertising rules will face tougher enforcement action. With this in mind, it is worth noting an interesting ruling by the Advertising Standards Authority (“ASA”) published on its website yesterday.
The ruling can be downloaded below but, in brief, the ASA found that, when using the words “… see if you’ve got the talent”, a TV ad for Gala Interactive’s “Britain’s Got Talent” Slingo game:
- implicitly suggested that viewers could exercise a degree of skill that would improve their opportunity to win at a game of chance and
- was therefore irresponsible and breached the BCAP Code.
Of particular note is the opinion of the ad expressed by Clearcast, the organisation owned by six UK commercial broadcasters that operates an advance clearance system for television commercials by checking and making sure that ads follow the BCAP Code.
In the case of the Gala Interactive ad, Clearcast said that:
- use of the word “talent” was an allusion to the name of the Britain’s Got Talent game and did not equate to skill,
- in the context of the ad, “talent” meant having fun and enjoying oneself, such as the enjoyment depicted by the characters watching the plate-spinner, and
- like all Gala ads, it was meant to be light-hearted and not to be considered seriously.
We have posed ourselves the question whether such an ASA ruling will in future mean that, after the LCCP changes come into force on 31 October 2018, a breach of the BCAP Code will automatically render the holder of a Gambling Commission operating licence subject to the Commission’s full range of regulatory powers, including imposition of a substantial financial penalty.
In our view, the answer is “no”. The decision-making behind ASA rulings is subjective and this Gala Interactive ruling is a prime example of that. One can reasonably expect the Gambling Commission to be proportionate in its consideration of adverse ASA rulings, with a harsher line being taken against repeated risk-takers and those who commit more serious breaches of the Advertising Codes. In particular, we believe that the Commission will take note of advance efforts that have been made by gambling operators and their agents to ensure compliance, including obtaining advice from Clearcast in the case of broadcast advertising and the CAP Copy Advice Team in the case of non-broadcast advertising.
Nevertheless, repeat offenders can expect a more robust reaction from the Commission in future and we strongly recommend that all licensed operators ensure that their marketing teams, advertising agents and marketing affiliates take note of the Commission’s recently published “Gambling advertising and sponsorship rules reminder for operators” and its dedicated “Advertising/marketing rules and regulations” webpage. Anyone still in doubt should feel free to contact us.