Placing digital adverts responsibly: new LCCP licence condition
This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
The Gambling Commission has published the wording for a new licence condition to be included in its licence conditions and codes of practice (LCCP), prohibiting licensees from placing digital adverts on websites providing unauthorised access to copyrighted material.
In a consultation published in May 2016, the Commission sought views from the gambling industry on the proposed licence condition. Having now finalised the condition, the Commission is due to include it in its revised version of the LCCP for publication in the autumn. This will confirm the date from which the new obligation will be effective.
Licensees are required to:
ensure that they do not place adverts on websites providing unauthorised access to copyrighted content;
- take "all reasonable steps" to ensure that third parties with whom they contract for the provision of any aspect of their business related to the licensed activities also do not do so; and
- ensure ensure that the terms upon which they contract with such third parties enable them, subject to compliance with any dispute resolution provisions, to terminate their agreement promptly if, in the licensee’s reasonable opinion, the third party is responsible for placing adverts on infringing websites.
The Commission has not been prescriptive in the licence condition as to what "reasonable steps" licensees must take in relation to such third parties, nor has it provided any guidance in this respect. It is likely, however, that licensees will have to revise their internal processes to ensure that they can effectively monitor third parties' placement of adverts and take robust action where adverts are found to have been placed on infringing websites. Where licensees do not already have the right to do so, they will need to amend any relevant agreements to include the necessary termination rights and would be wise to also include an express prohibition on such third parties placing adverts contrary to the licence condition.
To comply with their obligations, licensees should also ensure that they have appropriate procedures in place to ensure that they themselves do not place adverts on infringing websites, for example by regularly monitoring the websites appearing on the Infringing Website List maintained by the City of London Police as part of Operation Creative.
