Gambling and football – two words that go hand-in-hand for a lot of football fans. For many punters, having a flutter on a match-day is an essential part of their footballing experience. Betting companies looking to attract customers spend significant sums on advertising, but it can be difficult to get things right, especially when it comes to complying with the regulations applicable to gambling advertisements. The Advertising Standards Authority (“ASA”) recently found that BetIndex Ltd (“BetIndex”) breached the non-statutory rules that govern gambling ads.

BetIndex

BetIndex operates the ‘Football Index’ platform, where users can trade virtual shares in professional football players, using real currency. The purchase of a share is essentially a bet, while the sale of a share brings that bet to an end. In the interim, the value of a share fluctuates in accordance with user-demand for shares in that particular player. While BetIndex styles Football Index as “the football stock market”, it is fundamentally a platform, which enables users to gamble.  As such, BetIndex is obliged to comply with the rules applicable to gambling advertising that are set out in section 16 of the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the “CAP Code”). While there are a variety of requirements under section 16, the relevant rules for present purposes are as follows:

• Rule 16.1 of the CAP Code: marketing communications relating to gambling must be socially responsible and pay particular regard to protecting children.
• Rule 16.3.14 of the CAP Code: no one under the age of 25 can (i) be featured; or (ii) play a significant role in gambling marketing communications anywhere other than (i) in the gambling operator’s own website; or (ii) in a betting shop; and as long as it shows them in a betting context where they are the subject of the bet.

The Ad

So what did the BetIndex ad look like? The ad, which appeared on a social media site, showed pictures of various football players under the age of 25 (the “Ad”). It depicted the value of those players on Football Index and the profits that could be made by trading shares in them.

The ASA received a complaint challenging whether the Ad was irresponsible and in breach of the CAP Code.

BetIndex contested elements of the complaint, arguing that:

(i) the young players did not play a significant role in the advert;

(ii) the images represented a roster of players;

(iii) the players were used solely to illustrate the functional features of the platform and what consumers would see if using the app;

(iv) no individual player was drawn out for specific focus; and

(v) no player was featured gambling.

Ultimately, however, BetIndex advised the ASA prior to the ruling being made that they had “withdrawn the ad and would ensure staff would receive relevant training regarding their responsibilities under the CAP Code and the use of sportspersons under 25 years of age.”

The ASA’s decision

Perhaps unsurprisingly, the ASA upheld the complaint. Whilst the ASA accepted that the intention of the Ad was to “illustrate the nature of the gambling app and how it could be played”, it stated that of equal importance was “its aim to offer the audience an opportunity to use the app for the purposes of gambling”. In the ASA’s view, even though no under-25 player was in focus, “all listed footballers were the focus of the post”, and each played an “equally significant role in the marketing communication.”

Moreover, the ASA clarified that the Ad contravened Rule 16.3.14 of the CAP Code, as it did not appear in a place where a bet could be made (such as the Football Index website), nor had the players been used to “illustrate specific betting selections where they were the subject of the bet offered”.

Analysis

The ASA explained in its ‘Regulatory Statement: gambling advertising guidance’ that the aim of the ‘under-25s rules’ in the CAP Code is to protect young persons from being influenced to gamble by people that look or sound of a similar age.

As such, it is not surprising that the ASA has ruled against gambling adverts involving sports people under 25 on a number of previous occasions (see for example decisions relating to Bet365, Coral and Totesport cases).

It is worth noting that the ASA may have taken a different decision if the Ad had appeared on the Football Index website, rather than on social media. The Ad could possibly have benefited from the exception to under-25s playing a significant role in gambling marketing communications set out in Rule 16.3.14 (explained above).

However, the ASA has confirmed that this is a narrow exemption allowing marketers to feature under-25s when illustrating bets only and that they may not in any way use an image to promote gambling in general or their brand.

The BetIndex ruling serves to highlight the importance of having regard to the CAP Code when creating gambling-related marketing communications. In particular, advertisers should take care to ensure that they comply with the CAP Code when publishing marketing communications that depict individuals that are, or appear to be, under the age of 25

This article was authored by Ailin O'Flaherty