Osborne Clarke associate Melissa Geffert recently attended an emergency briefing by the DCMS and the Gambling Commission on present and future gambling ad controls. How will gambling ads be regulated when the Gambling Act 2005 comes into force?
Topic: Emergency Briefing: DCMS & Gambling Commission
When: 2 December 2005
This briefing was prompted by a statement by Tessa Jowell (Secretary of State for Culture, Media and Sport) on 10 November 2005 that there was going to be a crackdown on advertisers and publishers who knowingly break the law.
The new Gambling Act 2005 is due to come into force by late 2007. This crackdown is therefore in respect of the law as it currently stands and refers to Section 42(i)(c) of Gaming Act 1968 which states that "no person shall issue or cause to be issued any advertisement… inviting the public to subscribe any monies… to be used in gaming".
To assist companies wishing to comply with the current law there is a list of breaches and behaviour that would be considered a breach of current English law on the Casino Advisory Panel website at http://www.culture.gov.uk/cap.
This includes the advertising of free bonuses, stake matching, value of the prize pool, ways to enter, entry fees and how to register on the site for gambling.
The Gambling Commission's view
The Gambling Commission confirmed at the emergency briefing that it will support the DCMS in any prosecution, but will also bear in mind that in 2007 the position will be changed when the new law comes into force.
Will breaches of the current law affect future licences?
The DCMS indicated at the briefing that conduct under the existing law will be taken into account in the granting of licences under the new Act. The Gambling Commission did not appear wholly in accord with this, but what seems clear is that if companies have taken legal advice as to their position and complied with that advice the Government will take a take this in account when assessing any enforcement action under the existing law, and any applications for licences under the new law.
How will the advertising control provisions of the new Gambling Act be enforced?
The DCMS stated that it is in favour of self-regulation rather than Government involvement through regulations. This, despite the fact that the Gambling Act appears to envisage detailed, direct control of gambling advertising through Gambling Commission regulations.
The Advertising Standards Authority's sister body the Committee of Advertising Practice ("CAP") has recently confirmed that come November 2007, broadcast 0 and non broadcast gambling advertising in the UK will be directly controlled through rules issued by the broadcast and non broadcast arms of the CAP.
The Advertising Standards Authority will process complaints that these rules have been breached and continued holding of a gambling licence will be dependant on compliance with the CAP and BCAP rules.
The next two years
The DCMS acknowledged that, in respect of non-EEA operators over the next two years, where no part of the supply chain is based in the UK, the Government would have difficulty in enforcing the current law. Although there is a precedent in the Dutch courts for applying worldwide injunctions, it will be difficult (and expensive) from a legal perspective to enforce a legal ruling against a foreign company based and operating outside the UK.
Gambling Act 2005
A number of attendees at this emergency briefing raised issues ranging from content control in relation to mobile operators to broadcasters showing sponsorship of online gambling operations. These issues were not wholly resolved and it seems clear that there will be many more questions to come both over the next two years and when the new Gambling Act is implemented.
The CAP has indicated that the draft gambling advertising rules will be put out for consultation well before the new law comes into force in November 2007.
In addition, the DCMS has just issued a Three Year Licensing Policy Statement in relation to how licensing will be granted which can be found on the DCMS website at www.culture.gov.uk under "consultations".