Licensing solicitor talks digital marketing & gambling advertising

This article originally appeared in Coinslot International on June 3rd 2022.

Recent musings from the UK’s advertising regulator suggest digital marketing is now a key area of focus in its bid to protect children from gambling advertising, says Felix Faulkner, solicitor at Poppleston Allen.

For an industry that’s often subject to negative publicity, the recent news that children’s exposure to TV gambling advertising had reduced by a quarter over the past decade provided some rare positive news flow.

Gambling operators certainly deserve kudos for working constructively and effectively within the Advertising Standards Authority’s (ASA) current guidance to make sure young people are not bombarded with ads for gambling products.

However, there’s no room for complacency as the advertising regulator has made clear it still has concerns children are being subjected to inappropriate online marketing.

Given its recent statements, it seems likely that digital marketing will be a key focus of the ASA in the coming years, with it acknowledging the fact that children are now consuming media in a different way. All of the evidence points to young people watching TV less but spending more time on social media sites such as YouTube and TikTok using their phones or tablets.

In its recently published annual report, the ASA said it had been carrying out CCTV-style monitoring on certain sites to identify cases where the rules had been broken by gambling operators, and it is likely the use of this surveillance will only accelerate.

The new guidance coming into force in October that restricts the use of well-known individuals that have strong appeal to young people or children in gambling advertising will only add to the armoury of the ASA in reviewing advertisements it is concerned about.

In our experience, most gambling firms are responsible operators with good intentions and do not set out to deliberately target children – there’s no point when they are not legally allowed to gamble.

But inadvertent exposure can happen and with the guidance becoming ever tighter, it’s more important than ever for operators to undertake extensive due diligence on any advertising campaigns they plan to undertake, whether via traditional or digital avenues.

Operators will need to ensure they are more careful in how they choose celebrities and influencers to advertise their products once the new guidance comes into play.

The ASA will take a wide view of the use of high-risk celebrities in its enforcement. The guidance seems to have been purposefully drafted to cover catch-all scenarios where it believes operators are trying to flout or circumvent the new rules.

For example, it states that, “the rules apply in spirit as well as in letter and whether or not a gambling product is shown or referred to”.

It also specifically mentions that it covers, “online channels like marketing on social media platforms, and influencer and affiliate marketing activity”.

The term ‘influencer’ can be a difficult one to define as a particular influencer does not necessarily have an influence on everyone. By following the new guidance, it’s relatively easy to identify a top-flight footballer, less so an influencer.

One outcome of the new guidance may be that gambling operators shy away from using well-known personalities altogether. After all, any celebrity, sportsperson or influencer classed as low risk under the new guidance may not be considered to have enough appeal to punters to be worthwhile to operators.

However, there will likely be some niche individuals who operators will still see as having a significant pull with their audience.

Where operators identify such individuals, it’s recommended they keep robust documentation to prove exactly how they’ve come to the conclusion that person won’t be of ‘strong appeal’ to children, the rule they have to comply with from October.

As a starting point, marketers will obviously need to look at an individual’s digital presence in determining their appeal to children. However, the ASA guidance makes clear it expects operators to also make use of all of the analytics and audience data tools available when researching potential endorsers.

We don’t yet know exactly how the new rules will be enforced. Therefore, for now our advice to clients is to exercise caution and make sure you are able to provide an evidential basis that all of your marketing has been put together to ensure it has minimal appeal to and impact on children.

For more information on this, or any other licensing legal matter, contact licensing solicitor Felix Faulkner, or call 0115 953 8500.