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During the covid lockdowns, there was an explosion in growth of gaming and online gambling. The sector has long had to grapple with potential harms to children and vulnerable people associated with online gambling and gaming, and the issue has been a focus for a range of regulators. These include not only the Gambling Commission, but also the ICO, the Committee for Advertising Practice (CAP) and the Advertising Standards Authority (ASA), which have continued to take steps to ensure that children are not targeted with adverts encouraging them to gamble.
Back in April 2022, CAP announced new rules applicable to gambling ads specifically targeted at enhancing safeguards for young people and vulnerable audiences. The rules came into effect from 1 October 2022, giving advertisers six months to prepare for the changes. The main change in the new rules was to require that gambling and lottery ads must not "be likely to be of strong appeal to children or young persons, especially by reflecting or being associated with youth culture." This is a step up from the previous rules which had a lower threshold in stating that ads must not be of "particular appeal" to children. In this context "children" are deemed to be those who are under 18, the legal age for gambling.
The rules set out some examples of the types of ads that would be considered to have a strong appeal with reference to under-18s, regardless of how the ad may be viewed or interpreted by adults. In particular, gambling ads cannot use:
There are limited exceptions to the application of the rule where the advertiser is able to demonstrate that appropriate steps have been taken to limit the potential for an advertisement to appeal strongly to under-18s, such that the rule would not prevent the advertising of gambling products associated with activities that are themselves of strong appeal to under-18s (for instance, certain sports or playing video games). This places the thorny issue of 'loot boxes' within video games outside the scope of the rules.
When the rules were introduced in October 2022 the ASA did publish further guidance on the applicability of the new rules, setting out some examples of what would be deemed:
These rules are largely aimed at reducing the promotion of gambling and lotteries via social media by those who have a large following on these platforms and particularly where the following may be comprised of a predominantly under-18 audience. This will be frustrating for a number of gambling companies that have tie-ups with Premier League clubs - at the beginning of the 2022/23 season, eight out of the 20 top-flight teams were sponsored by gambling companies. While the new rules will not affect those tie-ups, it does mean that the players and teams are unlikely to be able to promote the shirt sponsor in other ways.
In November 2022, the Gambling Commission published its own Young People and Gambling Report, which is an annual study to help improve understanding of children's and young people's exposure to, and involvement in, all types of gambling.
The headlines from the report are that while the data around regulated age-restricted products is encouraging, there is clearly a group which still struggles with gambling. The Gambling Commission has stated it is accelerating its drive to make gambling safer so we should expect to see more measures looking to reduce children gambling over the coming year.
It's worth noting that in tandem with the changes to the CAP code, the Gambling Commission also announced new rules requiring online gambling businesses to do more to identify and take action to protect consumers at risk from harm although these rules are not specifically aimed at protecting children. The new rules came into effect on 12 September 2022, requiring operators to:
Separately, in June 2022, the ASA published a statement to clarify its remit and scope when it comes to regulating gambling operator communications in social media content marketing. The statement reiterates that the ASA and Gambling Commission have a mutual understanding that all social media content published by licensed gambling operators must comply with the CAP code, particularly to ensure the protection of under-18s and vulnerable groups from harms associated with gambling marketing.
The ASA and Gambling Commission are focusing on reviewing and monitoring how gambling operators market their products and services on social media. In particular, the statement highlights how sports betting operators are using popular social media accounts on platforms such as Twitter to drive engagement with their followers. This means it can be a challenge to identify what is editorial-style content eg commentary or opinion pieces (outside the ASA's remit) and what can reasonably be classified as 'advertising'. The lines are being blurred by so-called 'content marketing' which doesn’t necessarily have a direct call-to-action or product reference but can still serve to promote the operator. The ASA is taking the approach that this content marketing is deemed to be selling something (despite the lack of clear calls to action, links or product references) and therefore falls within its remit and is regulated by the CAP Code.
The challenge comes in taking a consistent approach and some social media content will fall outside the ASA's enforcement remit where it cannot reasonably be considered to be directly connected with the supply of a gambling product. To try and draw some clear lines the ASA and Gambling Commission have agreed that:
In February 2023, the ICO published top tips for games designers on how to comply with the Children's Code. The ICO's Children's Code is a set of 15 enforceable standards which online services need to follow to protect the privacy and personal data of children likely to access the service. Online games are explicitly covered by the Code. The ICO's recommendations include:
It's positive to see the ASA and Gambling Commission continuing to take steps to reduce problem gambling, particularly among children and the vulnerable, and helpful that the ICO has published guidance on compliance with the Children's Code particularly aimed at the sector.
A key message is that both the ASA and Gambling Commission are going to be looking very closely at the approach taken by gambling operators on social media. It's likely that 2023 will see some significant enforcement decisions taken against gambling operators which are unable to keep pace with the regulatory changes and expansion of the ASA's remit. Alongside that, the ICO will also be focusing on issues including the use of nudge techniques when looking at games developers' compliance with the Children's Code. It's clear that across the wider regulatory ecosystem for games and online gambling, the focus is on protecting children and this is only likely to increase when the Online Safety Bill becomes law.
Calum Parfitt looks at the disruptive growth of P2E gaming.
作者 Graham Hann
作者 Jo Joyce
作者 Graham Hann
作者 Graham Hann
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