Remote Control: How the ASA is dealing with the regulation of gambling ads

The issue of advertising of gambling has become something of a sticking point for European regulators as they look to develop a greater understanding of the mechanics of problem gambling. Individual authorities in Italy, Spain and, most recently, Holland and Sweden have started down a path toward greater advertising restrictions in their respective markets.

As the world’s flagship market for egaming, the UK has not been immune to the clamour for greater control of gambling advertising. Media reports of a so-called “epidemic” of problem gambling in the UK, while mostly grounded in the fixed-odds betting terminals controversy, have found their mark in encouraging UK regulators to take a more proactive role in the regulation of advertising.

But how much is too much gambling advertising? Gambling operators are in many ways businesses like any other, and should be allowed to advertise their services, but with one possible exception: their businesses, if patronised too much, can prove addictive, causing damage to individuals.

As the body in charge of advertising, the Advertising Standards Authority (ASA) and its sister organisation the Committee of Advertising Practice (CAP) hold joint responsibility for maintaining advertising standards which are used by all UK companies. Charged with developing and maintaining a responsible advertising regime, CAP holds the responsibility for drafting the codes and standards, while the ASA makes sure that businesses adhere to the standards being set.

How does this manifest in the gambling industry? Well the most obvious way is via the use of assessment of advertisements by the ASA against the standards drawn up by the CAP. Based on the individual ad being complained about and the nature of that complaint, the ASA will assess the advert against CAP standards. This is done in the same way as the UKGC investigates and assesses gambling firms practices against its licensing codes of practice, only pursuing action against the business if said firm is violating its codes.

A central tenet of this is the development of a responsible advertising regime and regulation that is “proportionate, targeted, evidence-based, consistent and accountable”, but for director of the Committees of Advertising Practice, Shahriar Coupal, being a robust, responsible regulator isn’t about one thing as a “car’s engine is no more important than the steering wheel”.

Coupal believes there are three parts to a robust regulatory regime, the first being “that the parties being regulated are held to public account by an independent body, the second is that the regulations in place are evidence-based with particular regard to the protection of vulnerable people and finally, that there are material consequences for non-compliance; there needs to be risk associated with non-compliance”.

Protecting interests

With many other regulators considering similar measures, some might claim that regulators aren’t seeing things from the point of view of operators in pursuing a more aggressive approach toward advertising. However, for Coupal protecting consumers and representing industry interests are not conflicting factors.  He considers it is in the industry’s interest to maintain its freedom to advertise responsibly and to “preserve that freedom we’d say that the industry absolutely must protect its customers and the wider audience at large.”

Qualifying this view, he believes that any notion that the industry’s long-term interests are served by fighting against the protection of consumers is “completely wrongheaded” and that consumer protection and industry interests are aligned.

For Coupal the ASA’s business is “telling gambling advertisers what not to do” and as such the law “invites the ASA to “place weight” on the protection of individuals who may be vulnerable to gambling related harm. However, as he explains, this regulation is not without constraint and must be “proportionate to the risk of harm” related to gambling advertising. “We do that by taking account of the evidence base and inviting the views of interested parties to make sure that we’re getting that balance right,” Coupal adds.

Coupal stresses the need for operators to understand the full range of ASA actions as not every case merits the same degree of action. Explaining this stance, he gives an example of a one-off minor infraction, where the ASA would work to “informally resolve that case with a gambling operator to make sure that they’re aware of their compliance responsibilities and that they’re aware that we have our contact with them on record”. This light touch approach for Coupal works best for consumers as it removes the offending ad at the soonest opportunity and serves to remind the gambling operator about its obligations.

Extending its scope

At the other end of the scale, Coupal stresses the presence of a range of sanctions in the regulator’s arsenal, and that the ASA isn’t just about rulings on advertising. “We have a lot more other stuff we do in between, including working with the likes of Google and Facebook to remove non-compliant advertising that clearly breaches the rules,” Coupal adds.

The presence of the regulator ultimately adds steel to efforts to make gambling advertising more responsible, but as the saying goes it takes two to tango and the gambling industry is playing its part. Examples of this include the whistle-to-whistle ban, first proposed by the Labour party and latterly adopted by the Remote Gambling Association.

Learning the lessons of the FOBT debate and the resultant negative perception of the gambling industry, operators have struck the first blow towards a more moderate advertising regime in the UK. In addition to this, Sky TV, one of the UK’s largest broadcasters, announced its commitment to one gambling advert per commercial break with effect from summer 2019.

While applauding the efforts made by operators to enforce a more responsibly led advertising agenda, Coupal says regulation is best delivered through an expert body “operating to tried and tested regulatory principles of proportionality consistency and accountability”. Justifying this reliance on the regulator motivating the debate, Coupal believes the use of regulatory instruments such as open and transparent consultations enables regulators to deliver evidence-based outcomes that move beyond mere opinion.

The drive to deliver on evidence-based outcomes has paid dividends for the ASA, as revealed in recent research which showed the exposure of children to gambling related advertising had fallen by 37% since 2007. In real terms, children, on average, are now exposed to 0.4 gambling ads on TV every week, a figure that flies in the face of tabloid headlines about the so-called “bombardment” of gambling ads on children.

Presenting evidence

When discussing the importance of evidence in shaping the ASA’s policies, Coupal highlights the importance of having UK-based evidence, as “so much of the evidence surrounding gambling comes from other jurisdictions including the US and Australia, where there might be fundamental socio-economic differences that mean the research cannot be applied to the UK”.

Coupal believes that a forthcoming GambleAware research report into the effects of gambling-related harm in the UK on children and vulnerable individuals will be a “fantastic” opportunity for the ASA to access a whole tranche of up to the minute data and shape policies as a result.

Indeed, evidenced-based outcomes form the bulk of the ASA’s approach to regulation, with all regulations drafted being subject to judicial review by the government. “We have to be very careful about the constraints we place on gambling operators’ licence to advertise. Qualifying this statement, Coupal adds “everything we do has to be rooted in evidence and has to meet the broad standards required by the Gambling Act” with the aim of protecting vulnerable individuals.

With such a broad remit, there will always be the possibility of gaps in advertising codes which can be exploited by less than responsible operators, but for Coupal the emphasis isn’t on plugging gaps in regulations, rather it is on “working smarter online”. This is primarily to address growing concerns that children and vulnerable groups are being targeted by online ads.

The ASA’s new strategy on this pledge includes closer cooperation with large online platform providers to make better use of technology to deliver “more effective and impactful regulation online” as Coupal explains. As a part of this increased use of technology in its investigatory powers, the ASA is currently undertaking research using online child avatars to identify online ads that are being received by children. Ahead of the publication of the results of this investigation later this year, Coupal explains that the ASA has identified a handful of cases where gambling operators have, knowingly or otherwise, delivered gambling ads to child avatars on child-orientated websites in clear breach of the rules.  They will face enforcement action over the coming months.

Away from the undoubtedly headline grabbing enforcement actions, Coupal says that the initiative aims to “introduce some science and facts to the debate about online ads” as this debate is currently characterised by “perception and wider agendas”. In initiatives such as this, Coupal says the ASA’s overall aim is to “persuade and reassure” the public that the ASA is the “bobby on the beat” of identifying online advertising issues.

As Coupal says, the ASA’s surveillance and research led agenda doesn’t just happen when complaints are made, and that most research done by the regulator is in the absence of any complaints. The ASA aims to achieves this through the “proactive gathering and use of intelligence and through innovative market monitoring and enforcement projects”.

Looking ahead

In February, CAP unveiled new standards which aim to protect children and young people from irresponsible gambling ads. Under these standards, any online ads for gambling products are prohibited from being targeted at groups of individuals who are likely to be under the age of 18, based on data about their online interests and browsing behaviour.

From 1 April, when the new standards go live, CAP will expect gambling operators to adhere to the list of unacceptable types of content, including certain types of animated characters, licensed characters from movies or TV and sports people and celebrities that are likely to be of appeal to children, as well as references to youth culture. In addition, the use of sports persons, celebrities or other characters who are, or appear to be, under 25 in gambling ads will be expressly prohibited.

Although these standards have existed in some form or another, Coupal believes that it was important for the regulator to provide consolidated guidance which sets out the key lessons from past ASA rulings “so that gambling operators know where the line is being drawn”.

For Coupal, consolidated guidance and tougher rules by the ASA are all leading to a point where gambling operators have “no excuse to play at the margins, that they are aware of where the ASA has drawn the line and they shouldn’t be getting anywhere close to it”. Expanding on the implications of the new guidance, Coupal says that any operator who says ‘well we think, on balance, this is likely to have more appeal to adults than to children’ is likely to be in for a serious debate with the regulator in the future.

“Having the argument with a gambling operator that a fairytale princess has more appeal to adults because they have nostalgia for the character is not really the discussion that we should be having, not if the industry is absolutely committed to its social responsibility credentials,” Coupal adds.

Despite the comprehensive nature of the consolidated guidance and the fact that it’s based on previous ASA rulings, Coupal believes that operators should not rely on this criterion alone, rather “they must rely on their own compliance procedures to ensure they’re on top of ASA rulings as they arise.” Indeed, the ASA and CAP may look to build on this guidance following the expected publication of GambleAware’s research into the effects of gambling on children and young people, slated for publication later this year.

Keeping with the theme of using evidence in determining policy, Coupal believes that both CAP and the ASA need to be “open-minded where the evidence points to a need to either strengthen or perhaps even lighten up the rules we have”. Looking into where this evidence is taking the regulator, Coupal adds that it is “pointing towards keeping a robust regulatory regime in place”.