This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
During the course of last month, the Advertising Standards Authority (ASA) published various rulings against gambling operators, highlighting the potential pitfalls that advertising gambling can pose. Set out below are summaries of each ruling and what can be learnt from them.
Rational Entertainment Enterprises Ltd
A banner advert on the account holder's homepage stated: 'Money back up to £/$/€10 if your first spin and bet loses. Bet now…'. The complainant challenged the claim for being misleading as it did not make clear that such returns were in the form of free bets. This fact was included in the full Ts&Cs linked to from the banner, but omitted from the advert itself.
The ASA ruled against Rational, and agreed with the complainant that it was reasonable for the consumer to regard the ad's claim as meaning they could get real money back, not just a free bet. They stated that the fact that it wasn't real money was a significant term, and that this should have been set out in the advert itself (not just in the applicable Ts&Cs).
Rule 8.17 of the CAP Code states that all marketing communications referring to promotions must communicate all applicable "significant conditions". There is an exception to this rule, however, under rule 8.18, where the communication is "significantly limited by time or space". In such a case, it is sufficient to include as much information about significant conditions as practicable and direct consumers to an easily accessible alternative source where all such conditions are stated.
This case illustrates how narrowly the ASA interprets this exception (it appears that the advert was a standard size banner ad) and that the condition restricting the refund to free bets rather than cash, would be deemed a "significant condition". The ASA's full report of the ruling can be found here.
Triplebet Ltd
Triplebet sent out a promotional email for a 'Risk-free bet on England v Wales', stating: '…we are giving you an in-play risk-free bet on your mobile for the game… If your bet loses, we will refund your stake up to £25. It's a win win for you!'.Upon clicking the link, the player was transferred to a page explaining the significant T&Cs, including that certain odds were required to qualify for the promotion (these odds were not stated in the email itself). Customers were not required to place further bets in order to get their refund (which was a cash refund rather than free bet). The complainant said that the term 'risk-free bet' was misleading as, upon his placing the losing bet no refund was given, because his bet did not correspond with the odds required.
The ASA ruled against Triplebet on the basis that the restrictive odds was a significant condition that should have been made known to the consumer on the email before they clicked 'Bet now'. It was decided that the wording of the advert was misleading as to its nature.
This case highlights that the ASA deem any limitations on what is deemed a qualifying bet under such a promotion to be a "significant condition", which should be set out in the advert itself. The ASA's full report of the ruling can be found here.
Ladbrokes Betting & Gaming Ltd
In the past month, the ASA has ruled against Ladbrokes twice. The first case was regarding an email sent with the promotion 'Ladbrokescasino [sic]… 10 FREE SPINS + 90 SPINS EXTRA'. The ad depicted Iron Man with the text 'IRON MAN 3… Enjoy this exclusive Ladbrokes welcome offer with Iron Man 3'. The emails were only sent to registered customers.The complainant raised the issue that the use of Iron Man was irresponsible, as his character is particularly appealing to children. Ladbrokes argued that the image was adult themed and provided evidence that followers of Marvel comics are predominantly adult.
The ASA ruled against Ladbrokes, citing their argument about Marvel's popularity amongst adults as ultimately flawed as it is harder to collect data regarding children. It was found that Iron Man's origins in comic books (irrespective of his appeal also to many adults), and the availability of related toys meant that it was highly likely that he would appeal to under 18s.
It is clear that the ASA is vigilant in its stance on adverts that could be appealing to under 18s, regardless of how small the probability is of a minor coming into contact with the advert. Sending a promotion directly only to registered members (i.e. over 18s) does not mitigate the risk here. Rule 16.3.12 of the CAP Code states that ads for gambling must not appeal to children, especially by reflecting or being associated with youth culture. This is a good example of what 'youth culture' can be deemed to cover. Ladbrokes has since been reported as announcing their decision to challenge the ASA's decision by triggering the Independent Review Process.
The second Ladbrokes case was regarding an online advert which stated: 'New customers can get incredible odds on England v Wales. Pick a side and enjoy fantastic enhancements. England's upcoming clash against Wales is arguably the most eagerly anticipated contest of Euros 2016. New Ladbrokes customers are being asked to pick a side and sign-up to enjoy huge odds on the Group B encounter in Lens ... Get 6/1 for England to beat Wales OR Get 12/1 for Wales to beat England*. Maximum bet £10. One bet per new customer. Stake returned as a free bet if it's a losing selection ... *Click here for full Terms and Conditions'.
The odds listed in the promotion were ‘enhanced odds’, whereby winnings would be paid as a combination of cash (based on the market odds) and a free bet (making up the difference between the market odds and the enhanced odds of 12/1 or 6/1). The advert did not state that part of the winnings would be paid in free bets and this was only stated in the Ts&Cs that the ad linked to.
The ASA ruled against Ladbrokes stating that the wording ‘Get 6/1 for England to beat Wales OR Get 12/1 for Wales to beat England’ would lead a consumer to assume that all winnings would be paid at the stated odds in cash. This illustrates again the ASA’s focus on enhanced bet offers, and the fact that they deem that payment of part of the winnings in free bets to be a "significant condition" which should be included in the advert itself (not just the full Ts&Cs).
The ASA's full reports of these rulings can be found here and here.
