Who: The Advertising Standards Authority (ASA) and the Gambling Commission
Where: Great Britain
When: 10 June 2022
Law stated as at: 8 July 2022
In February 2021, the ASA published an update that sought to clarify its remit over marketing communications appearing on websites, apps and cross-border platforms. The update left some uncertainty over the ASA’s remit in relation to gambling operators’ social media “content marketing” –that is, social media content that does not explicitly refer to or promote the gambling brand, but instead references real life events; for example, through commentary on recent events or through memes or other types of humour.
To combat this uncertainty, the ASA has published a statement that sets out the basis on which the ASA or the Gambling Commission will consider complaints about gambling operators’ social media content marketing.
The ASA sets out in the statement that it regulates “advertising” – that is, commercial communications that are likely to have the effect of selling something. The ASA goes on to state that it deems the vast majority of content marketing to be selling something, meaning it will be regulated under the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code).
However, the ASA states that there is the potential for some social media content to fall outside its enforcement remit if it is not directly connected with the supply of the gambling product in question. It states this is likely to be the case where there “are no direct, or insignificant indirect references, to gambling products”.
The statement does not give any examples, and it is arguably slightly contradictory in that it states that content marketing on the one hand is likely to be in the ASA’s remit as it is selling something, but then there are instances in which it may not fall within its remit if there are no direct or there are insignificant indirect references to the product in question (which is essentially the definition of content marketing).
Regardless of this uncertainty, what the statement does make clear is that the ASA and the Gambling Commission do not want anything to fall between the gaps. The ASA and the Gambling Commission have agreed:
- The ASA will continue to consider complaints about social media ads in line with its existing approach to remit decisions and on a case-by-case basis.
- Where a complaint about a gambling operator’s social media activity is deemed not to be within the remit of the ASA, it will be referred to the Gambling Commission. The review of the complaint by the Gambling Commission will be in line with its Licence Conditions and Codes of Practice (LCCP) and may take action in accordance with its Licensing, Compliance and Enforcement Policy. This makes sense given LCCP Social Responsibility Codes 5.1.6(2) and 5.1.7(2), which state that, if media is not explicitly covered by the CAP Code or The UK Code of Broadcast Advertising, gambling operators should have regard to the principles included in the codes of practice as if the media was explicitly covered.
In short, what this means for gambling operators is that any social media content needs to comply with the CAP Code because, if the ASA decides that a complaint is not within its remit, then this will be referred to the Gambling Commission for investigation.
Why this matters:
Gambling operators should ensure that any all their social media content – whether or not it explicitly refers to gambling products – complies with the CAP Code. If the ASA decides that a complaint about a gambling operator’s social media content is not within its remit, then this will be referred to the Gambling Commission for investigation.