David Clifton is quoted in Part 1 – entitled “The affiliate sector and the Covid-19 crisis” – of the June 2020 edition of iGB’s Affiliate Monitor, that you can download here.

The passage quoting David reads as follows:

The UK, in particular, now appears to be on the cusp of introducing measures that will inevitably have an effect on the affiliate sector. While the current voluntary ban on TV and radio advertising might be seen as being beneficial to affiliates, the atmosphere around gambling during the pandemic is most certainly not.

“Examples of affiliates capitalising on the Covid-19 pandemic for marketing purposes have only served to fuel the perennial debate about whether affiliates should be licensed,” says David Clifton, legal gambling expert and partner at the Clifton Davies Consultancy. “Although required in a few jurisdictions, the argument against seems to rest largely on the fact that regulators can hold licensed operators responsible for their marketing affiliates’ activities,” he adds.

“However, with increased coronavirus-related gambling concerns leading to imposition by regulators of more ever-robust compliance requirements, concern that affiliates – unfettered by any licence responsibilities themselves – will increasingly focus their marketing efforts on grey/black markets is wholly understandable.”

He suggests there might even be calls in some jurisdictions for all gambling affiliate activity to be banned. In response, he says, it will be interesting to see whether more licensed operators start to push for licensing of affiliates, “something that RAIG (Responsible Affiliates in Gambling) chairman Clive Hawkswood described as an ‘ill-informed and bonkers’ idea earlier this year”.

He points out that the debate about gambling advertising in the US has already moved on to considering whether online advertising should be added to a future potential ban. “I think it more than likely that the digital marketplace is where the debate will focus when the Gambling Act review eventually gets underway,” he adds. “That will certainly require a greater understanding of how that marketplace works than I suspect many MPs currently possess. Half an hour spent reading recent ASA postings about online affiliate marketing might help them.”

A good starting point for any MP who might decide to take up David’s suggestion is a December 2019 ASA/CAP website posting entitled “Online Affiliate Marketing”, accessible here.

In relation to the matters mentioned by David within the above extracts from Affiliate Monitor, it is also worth noting that:

1. The Betting and Gaming Council (“BGC”) made it clear to the House of Lords Select Committee (on 4 February 2020) that it wishes the forthcoming review of the Gambling Act 2005 to look at a licensing scheme for affiliates.

2. In the meantime, part of the BGC’s 10-pledge action plan (announced on 27 March 2020) was that its “members will enforce a strict one-strike-and-you’re-out policy for breaches of these Pledges”, adding that:

Affiliates provide an important role in providing messaging and responsible advertising to customers. This means affiliates must in no way mention or use the words associated with COVID-19 such as ‘’bored’’, ‘’isolation’’, ‘’stay at home’ ’amongst others. The BGC will collect and provide a list of key words and phrases to members, affiliates and social media platforms to prevent their misuse.

This Pledge covers inappropriate advertising related to Covid-19 which goes beyond regulatory restrictions.

The BGC is also going further in producing a Code for Affiliates which will cover areas such as content responsibility, deeper screening of affiliate advertising and incentives for affiliates.

3. On 13 March 2020, the CAP published a news item entitled “Coronavirus COVID-19 – Advertising Responsibly”. Then, less than two weeks after publishing a call to consumers to “Report a Coronavirus related ad”, on 7 April 2020 the ASA and CAP News published a “Gambling advertising and lockdown” warning, as reported by us here. Following this, on 23 April 2020, the ASA published on its website the following associated news items, namely (a) “What a slot of responsibility! Gambling ads and the CAP code” and (b) “Responding to new challenges: gambling, eSports and social media” 

UPDATE: In a complete about-turn from its previous firmly adopted position (quoted above by David Clifton) RAiG announced on 30 June 2020 its support for a licensing or registration regime for gambling affiliates (as reported by us here).