How the Advertising Standards Authority restricts the use of U-25 sports stars in gambling advertsDan Smith
This article examines how the use of young people in gambling advertising is regulated within the UK to try and prevent it from appealing to children. The issue is especially prevalent within the sports industry where gambling is popular and star athletes are often young.
The article will be of particular interest to executives and lawyers working for or advising bookmakers operating within the sports industry.
The issue: the case of Jordan Spieth
Jordan Spieth is 22, the world's current number one golfer and the reigning Masters and US Open champion. He's young, he's marketable and he's a problem for British bookmakers. Why? – because his age – part of what makes his achievements so remarkable - means that they can't use his image in social media, without risking action from the Advertising Standards Authority (ASA).
The ASA has recently issued a series of rulings against bookmakers' use of images of sports personalities, aged under 25, in their advertising (see below). Most involved tweets about Spieth during the US Open or immediately following his triumph at Chambers Bay.
Unlike the majority of ASA complaints, which originate from consumers, these were triggered by the regulator itself – it was watching and waiting and no doubt saw the occasion as an opportunity to remind UK gambling operators of their responsibilities under the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code).1
Bookmakers should sit up and take note – they are likely to remain under the regulatory spotlight, at least while youngsters like Spieth are winning. The rules may be a blunt instrument but they are designed to prevent gambling advertising from appealing to children. Given the extreme sensitivity of that issue, and the periodic calls in the media for greater regulation, it would be wise to keep the regulators on-side, taking care to follow the rules and fall within the available exception.
In examining the issue of using under age sports stars in advertising, we will look at the underlying CAP Code rules and why UK bookmakers, at least, might be cheering on Rory Mcllroy (age 26) in 2016.
Background: the extension of the ASA's remit and the knock-on impact for betting websites
Prior to a 2013 consultation, the CAP Code completely prohibited marketing communications for gambling from featuring people under, or who seemed to be under, the age of 25, in a 'significant role' (see Rule 16.3.14)2.
This became a particular issue for the betting industry when the scope of the CAP Code was extended, in 2011, to cover marketing communications on companies' own websites. As a result, images of sportsmen and women under the age of 25, used to illustrate betting selections on sports betting websites became subject to the relevant CAP Code Rule.
In 2012, Paddy Power Plc and News International Ltd sought to argue that Luis Suarez (then aged 24) was not playing a significant role in a press ad, where he was the subject of a bet.3
The advert at issue featured Luiz Suarez wearing a football shirt, and stated:
"MONEY-BACK IF SUAREZ SCORES. LIVERPOOL V MAN UTD. IF SUAREZ SCORES WE'LL REFUND LOSING BETS".4
Paddy Power and News International maintained that the advert would not have particular appeal to young or vulnerable people, or encourage young people to gamble. They sought to draw a distinction between featuring someone under the age of 25, who was a sports person and the subject of the bet, and featuring a person under 25 promoting the act of gambling or betting. The ASA rejected those arguments, finding that Suarez was the principal focus of the ad and therefore was likely to be seen by consumers to be playing a 'significant role'. The advert therefore breached the CAP Code.
The remit extension, coupled with the ASA's approach to the existing CAP Code rules, left betting websites effectively unable to illustrate a bet about, say, Lionel Messi (age 24 at the time of the Paddy Power adjudication), with an image of Lionel Messi.
This was deemed to be both overly restrictive and unfair, especially given that bricks and mortar betting shops could use images of sports personalities under the age of 25 in similar circumstances, as the CAP Code does not cover point-of-sale (except in the case of sales promotions).5
The Remote Gambling Association6 (RGA) and others argued strongly that the use of sporting celebrities, to illustrate bets about them on gambling websites, presented little risk of harm to young people. They also pointed to the stringent age verification processes, which gambling operators are required to implement on their websites as a consequence of their licence conditions. The RGA concluded that it was disproportionate to require the removal of images of sports people aged (or who appeared to be aged) under 25 from betting websites.
Having heard the arguments, the Committee of Advertising Practice (CAP)7 decided to proceed with a narrow exception to rule 16.3.14.
The exception to CAP Code Rule 16.3.14
The CAP Code includes some very broad restrictions on gambling advertising, governing both content (which would include copy, images/visuals and also the overall impression conveyed) and scheduling.
The rules state, among other things, that marketing communications for gambling products must "be socially responsible, with particular regard to the need to protect children, young persons and other vulnerable persons from being harmed or exploited"8 and that they must not:
- portray, condone or encourage gambling behaviour that is socially irresponsible;9
- exploit the susceptibilities, aspirations, credulity, inexperience or lack of knowledge of children, young persons or other vulnerable persons;10
- be likely to be of particular appeal to children or young persons, especially by reflecting or being associated with youth culture;11
- include a child or a young person. No-one who is, or seems to be, under 25 years old may be featured gambling or playing a significant role. No-one may behave in an adolescent, juvenile or loutish way. 12
However, as from September 2013, the rules were changed to allow those 'who are, or seem to be under 25 years old (18-24 years old)' and who are the subject of a bet, to be featured 'playing a significant role in marketing communications that appear in a place where a bet can be placed directly through a 'transactional facility', for instance, a gambling operator’s own website'.13
The image or other depiction used must show them in the context of the bet and not in a gambling context14 (ie it would be permissible to include an image of Jordan Spieth, on a golf course, as the subject of a bet, but it would not be permissible to show him placing a bet at the counter).
The new battleground: Social media
So, where does that leave social media?
After all, at least some of the arguments that led to the introduction of the exception to CAP Code rule 16.3.14 also apply in a social media context.
For example, UK bookmakers do not only operate age verification procedures on their websites – they also use them on their Twitter feeds, to prevent underage users following their accounts.
Does an image of tennis player Nick Kyrgios (age 20), with odds on him winning a tennis match, present a real risk of harm to children when used on social media, if it does not do so on a bookmaker's website?
There is much to discuss in the social media context, but here the author will focus on explaining the ASA's recent rulings in the Justin Spieth case, which have clarified the position under the current CAP Code Rule 16.3.14.
Although the case related only to the tweets of photographs of various betting companies appearing on Twitter, the decision and reasoning will have wider application to other social media platforms.
The ASA’s decisions in the Justin Spieth case
During the US Open, a tweet from the Totesport Twitter account featured a photo of Jordan Spieth playing golf and stated “We have gone 3/1 (from 15/8) for Jordan Spieth to win the #USOpen! Will NOT last!"15
After Spieth duly went on to win the US Open (perhaps netting some Totesport punters that 3/1 return), Coral tweeted a photo of the golfer holding a trophy and stated “Jordan Spieth: The Masters - [tick symbol] US Open - [tick symbol] The Open - 11/2 All 4 - 25/1 corl.me/8p1sHa”.16
The third tweet, from Bet365, while not alluding to specific odds, also contained a photo of Spieth holding a trophy alongside his family and stated “FILL IN THE BLANK: I think Jordan Spieth will win__Majors in 2015”.17
The ASA initiated its complaint process in relation to all three tweets.18
Both Totesport 19 and Bet365 20 argued that Spieth, while under 25, was neither vulnerable nor a child or young person21 as defined by the Code. They stated that Spieth was not playing a 'significant role' in the tweets and nor was he shown gambling or indulging in any juvenile or loutish behaviour.
The ASA was not convinced by these arguments, stating that, as the subject of the image attached to the tweet, Spieth clearly was playing a 'significant role' in the advertising. The presence of Spieth's family alongside him, in the Bet 365 photo, did not affect the ASA's analysis (in fact, it probably did little more than unhelpfully emphasise his youth...).
Totesport contended, as a second line of defence, that, if Spieth was taken to have played a 'significant role' in the advert, the tweet was still acceptable under the CAP Code. Spieth formed the subject of the betting selection on offer and the tweet included a direct link to the Totesport website, where a bet could be placed through a 'transactional facility'.
The tweet therefore fell within the exception provided for in the CAP Code. The ASA rejected this (arguably more persuasive) line of defence, maintaining that the advert did not appear in a place where a bet could be placed directly through a transactional facility (i.e. link to the website or not, it was not possible to place a bet through Twitter) and therefore was not caught by the exception.
Based on the wording of the published adjudications, Coral22 appears to have mounted a less vigorous defence than the other two bookmakers, focusing on the argument that its tweet was editorial in nature and therefore not be covered by the CAP Code at all (a rather hopeful argument in the context of the wording of the tweet). Spieth, Coral maintained, was used merely to illustrate the odds available on Spieth winning the Open and all four majors and not to promote specific bonus offers.
The ASA countered that the tweet featured references to specific odds and a direct link to the Coral website. It was therefore evident that Spieth's photograph was directly connected with the supply or transfer of goods or services (in this case, the supply of betting services) and was therefore advertising content within the remit of the Code.
Bet365 raised a similar argument, but on more solid foundations, since its tweet was genuinely devoid of odds or promotional messages and was, according to Bet 365, merely conversational content, reporting on a sporting event.
In its ruling, the ASA clarified the position.
- The CAP Code applies to material including adverts and other marketing communications by or from companies on their own websites, or in other non-paid-for space online under their control (such as non-paid-for Twitter content), that is directly connected with the supply or transfer of goods and services etc.
- Bet365's tweet was, in the ASA's opinion, intended to promote the Bet365 brand, even though it did not include odds or overt sales messages.
- The tweet commented on a major sporting event, and future sporting events, which Bet365 would take bets on.
- The ASA considered that the ‘fill in the blank’ question encouraged followers to "think about placing a bet".
- The Bet365 Twitter feed (which could also be accessed via one click when the tweet was viewed in a user’s own feed) also featured a direct link to their own website, where bets could be placed.
- The ASA therefore considered the tweet to be directly connected with the supply or transfer of goods or services and consequently within the ambit of the CAP Code. It was advertising rather than editorial.23
Having rejected all the arguments raised by Totesport, Coral and Bet365, the ASA upheld the complaints about all three bookmakers, instructing them to ensure that their marketing communications do not breach the CAP Code in the same way again.
Then, on 11 November 2015, the watchdog upheld an additional complaint24 this time in the context of email marketing and on the grounds that the advert pictured Memphis Depay (age 21) in a significant role. Ladbrokes immediately conceded that the use of Depay's image was not acceptable in an email and the complaint was upheld.
Comment: Strict approach of the ASA
The combined weight of three of the UK’s major bookmakers, raising all the realistic counter-arguments, failed to sway the ASA on the application of the CAP Code to the use of under 25s (to illustrate betting selections) in social media.
That is perhaps not surprising – a sudden flood of images of under 25 year olds on branded gambling feeds and pages would have made a mockery of the application of the rule to sports people in the first place.
In terms of the particular arguments raised, the website transactional facilities, through which users could place bets on Spieth, were insufficiently close to the tweets to allow the bookmakers to successfully argue that the exception in CAP Code Rule 16.3.14 was triggered.
But, at the other end of the scale, despite avoiding any reference to odds etc, Bet365 was unable to distance its tweet from the promotion of gambling, in a way which rendered the tweet editorial content not subject to the CAP Code.
What next for the bookmakers?
Given that the Bet365 tweet did nothing more than invite users to speculate on how many more majors Spieth might win, it is difficult to see how UK bookmakers could now realistically argue that Twitter content is editorial.
The ASA's conclusion on this point was to be expected – on the basis of its approach to date (across other industry sectors), it is clear that, in most cases, the editorial exception from the CAP Code is likely to be of very limited, or no use, when it comes to brand social media feeds or pages. Certainly, content intended to increase brand awareness will be caught, not just express product advertising. The Bet365 decision sets this down in black and white for the gambling sector.
Following the Bet365 adjudication, it is likely that bookmakers will have to treat tweets and other social media updates from branded feeds or pages as potentially advertising subject to CAP Code rules, even where the relevant content does nothing more than provide factual information about sport. Clearance by legal or compliance professionals, or at least policies, training and monitoring to ensure compliance, are required. This, of course, presents practical challenges in social media, due the volume of content published and the rate at which it is published (and Twitter's imminent removal of the 140 character limit on tweets could increase this burden).
A key question which remains open is how likely it is that the ASA would enforce against a tweet or other social media update, which mentions a young sports star in the text but without an accompanying image, or with an image where they are not playing a significant role. For example, a post mentioning a jockey aged under 25, accompanied by an action shot of that jockey in a race, in a cluster of other, equally prominent jockeys and their horses.
It is notable that all three Spieth adjudications focused particularly on the images, when assessing whether the golfer played a ‘significant role’ – while it is surely the case that someone can play a significant role in an advert without having to be pictured, this may give a clue as to the ASA's enforcement priorities.
Of course, the potential for reducing the practical risk of issues by removing images altogether would likely be of limited comfort, given that images grab attention and tweets with images typically gain greater traction (in January 2015, Twitter publicised research purportedly showing tweets with photos getting 313% more engagement than copy alone25).
An area where the ASA has not yet ruled is in relation to sports people aged over 25 who, nevertheless, look under 25. Code Rule 16.3.14 expressly extends to those who "seem to be under 25 years old" and it remains to be seen how the ASA would interpret this in relation to sports stars, whose actual age may be widely known. The public's knowledge of actual ages may, at least, serve to reduce the risk of complaints in practice.
Could lobbying be effective?
Overall, the area does seem ripe for further lobbying of the regulators, perhaps through a trade association. Does an image of Jordan Spieth, as the subject of a bet, really present a risk of harm to children? He may be young but, in the view of the author, he's not part of youth culture and golf is not exactly a sport with huge appeal to children (though, equally obviously, it's not much of a leap to see golf seizing on him as an opportunity to attract younger generations into the game).
That said, it must be highly questionable whether the ASA would be open to further campaigning on a relaxation of the rules. A 2014 review26 by the watchdog concluded that it was getting the regulation of gambling adverts broadly right and, if anything, implied it may get tougher on issues related to appeal to children – the foundation of the rule on the use of under 25s.
Specific rules on the use of under 25s in advertising appear in the CAP Code in relation to a number of other products – alcohol and e-cigarettes for example.27 Such rules are a bedrock of the regulator's approach to products where there is societal concern about appeal to children. In that context, and in the face of periodic media calls for greater (not lesser) regulation of gambling advertising, even broadening the limited existing exception covering sports people may be seen as a bridge too far.
The regulator's interventionist stance, in raising the three recent complaints, shows how seriously it is taking this issue and suggests there is little hope of a change in rules or approach in the near future.
For the bookmakers that leaves limited options, when it comes to Twitter and other social media, at least unless (and until) mooted 'Bet Now' button functionality becomes available (given that a transactional facility on Twitter, or another social media platform, would bring the exception to CAP Code Rule 16.3.14 back into play).
With team sports, it's possible, of course, to illustrate a betting selection using the team as a whole or individual players aged over 25. Elsewhere they may just have to hope that youth doesn't have its day and the breakout stars of 2016 (including the 2016 Summer Olympics Rio) are a little older than Jordan Spieth.
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- Tags: Advertising Standards Agency (ASA) | Betting | Broadcasting | CAP Code | Child Protection | Committee of Advertising Practices (CAP) | Football | Gambling | Golf | Governance | Horseracing | Regulation | Remote Gamblers Association (RGA) | The Masters | United Kingdom (UK) | United States of America (USA) | US Open
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About the Author
Dan is Director, Head of Advertising Law at Gowling WLG.
Dan has particular expertise in digital media, advising on social media campaigns, app development, contracts and rights management in the increasingly complex digital landscape and emerging issues such as those associated with native advertising, ad blocking, vlogging and live streaming via apps such as Periscope.