01Sep

Advertise with caution: ASA shine AI-fuelled torch on foul play

1st September 2023 Gemma Boore 180

Traditionally, the Advertising Standards Authority (“ASA”) have relied on “limited, labour-intensive manual searches and complaints from the public” to monitor and regulate the online advertising environment. However, since 2021, they have been “investing in data science capabilities and building a team to help take on the specific challenges of regulating online advertising”.

As a result, one of the newer weapons in the ASA’s armoury is its Active Ad Monitoring system (“the AAM System”). The AAM System, which processes more than 100,000 adverts per month, uses artificial intelligence (“AI”) to proactively search for online adverts that might breach the UK Advertising Codes. Specifically, the AAM System deploys “machine learning algorithms to identify and flag likely non-compliant adverts”, following which ASA experts can manually review and take any necessary action. The process is helpfully explained in the ASA’s graphic below:

The ASA’s commitment to use technology, such as AI, to detect and enforce more effectively aligns with the approach being taken by other authorities. For example, it was recently revealed that the police force in Devon and Cornwall detected almost 300 drivers breaking the law in three days using AI – and it appears a similar (although perhaps not quite so extreme) increase in enforcement activity is coming to fruition at the ASA.

Over the course of 14 days in August 2023, the ASA published three rulings relating to gambling adverts that potentially breached the ASA’s ‘strong appeal’ tests. The strong appeal tests effectively prohibit content (including imagery, themes etc.) that has a strong level of appeal to under-18s in gambling adverts; regardless of how the content is viewed by adults.

In each case, the adverts in question were identified for investigation following intelligence gathered by the AAM System.

We discuss the recent rulings and provide our insights below.

Novak Djokovic, Rafael Nadal, Nick Kyrgios and Stefanos Tsitsipas – of strong appeal

The adverts

This ruling concerned four promoted tennis-related tweets, featuring tennis players Novak Djokovic, Rafael Nadal, Nick Kyrgios and Stefanos Tsitsipas. Two of the tweets celebrated Djokovic’s impressive run of form, while the other two were polls which asked users to vote on tennis-related questions during the Australian Open.

The ASA’s assessment

The following factors were considered:

Djokovic, Nadal, Kyrgios and Tsitsipas had all appeared in a Grand Slam final in the previous year;
Djokovic and Nadal have each recently been ranked as the world’s number one player and had the joint record for the most Grand Slam titles won;
Kyrgios reached the Wimbledon final in 2022 and Tsitsipas reached the Australian Open final in 2023; both finals attracted large media coverage and would have been of interest to under-18s.

All four were therefore ‘star’ players with a high profile and would be considered high risk according to the ASA’s guidance on the strong appeal tests.

In its defence, the advertiser pointed out that:

most of the players’ social media followers were over 18 and that the players’ commercial partnerships were with adult-oriented brands; and
they understood that Twitter users self-verified their age, and because that was not always accurate, they had added an additional level of assurance by targeting the ads on social media to only reach over-25s.

Having considered the facts, the ASA determined that all four players were likely to be of strong appeal to under-18s. The regulator went on to note that it would have been acceptable for the ads to appear in a medium where under-18s could entirely be excluded from the audience for all intents and purposes. However, that would only apply in circumstances where those who saw the ads had been robustly age-verified as being 18 or over, and it did not consider that the methods in question (i.e. self-verification by Twitter users coupled with behavioural targeting) met that threshold.

Accordingly, the ASA determined that the adverts breached CAP Code (Edition 12) 16.1, 16.3 and 16.3.12 (Gambling) because they used people who strongly appeal to those under-18 years of age when under-18s could not entirely be excluded from the audience.

Granit Xhaka – of strong appeal

The advert

This ruling related to a tweet published on Twitter in February 2023 featuring the text: “Granit Xhaka pulled out this stunning finish last season in Arsenal vs Man United”. The tweet contained an embedded video which opened with a footballer kicking a ball from the corner. As he did so, a green digital circle appeared around him. As the ball travelled, a green triangle appeared where the ball had been kicked and the gambling operator’s logo appeared. The video then cut to footage from a football match between Arsenal and Manchester United and showed Xhaka scoring a goal as the crowd cheered. The score of the match then appeared overlayed onto the video.

The ASA’s assessment

The following factors were considered:

Even though the original tweet was not published by a gambling operator, it was promoted by an operator using the Twitter Amplify feature and as such, the tweet was considered by the ASA to be an advert for that operator.
Football is an activity that is highly popular amongst under-18s in terms of participation and viewership, there is sophisticated infrastructure around organised participation in football, and it has an exceptionally high media profile (including dedicated media for under-18s). Hence, those who play football at an elite level are likely to appeal strongly to under-18s.
At the time the advert was seen, Xhaka was a player for Arsenal Football Club. Xhaka is therefore well-known to Arsenal fans and other football fans more widely. Xhaka is also well-known for being the captain of the Swiss national team.
Although the tweet was only promoted to users over 25 years of age, under-18s could not entirely be excluded from the audience due to the lack of robust age-verification controls/measures on Twitter.

Accordingly, the ASA determined that the advert breached the CAP Code (Edition 12) 16.1., 16.3 and 16.3.12 (Gambling) because it featured an individual who strongly appeals to under-18s, and under-18s could not in practice entirely be excluded from the audience.

Robbie Savage – not of strong appeal

The advert

This ruling concerned a promoted tweet which stated: “ No matter who the manager is Leeds are going down. @RobbieSavage thinks it’ll be too little, too late at Elland Road…”. The tweet contained an embedded video clip that featured Savage discussing Leeds United’s relegation prospects. The video featured the gambling operator’s logo intermittently and the BeGambleAware logo. Text at the end stated, “It’s who you play with.”.

The ASA’s assessment

The following factors were considered:

The advert appeared in a medium where under-18s could not entirely be excluded from the audience, so the age verification ‘safety net’ could not be used as a defence if the advert was found to be of strong appeal to under-18s.
Savage had played for several Premier League teams and at an international level for Wales. However, he had not been a Premier League player for 15 years, and his Wales career ended four years before that, so he is now more associated with punditry/the media.
Savage’s punditry and other media appearances were primarily aimed at adult audiences e.g. tactics, team performance, financial and strategic issues etc. This is supported by audience data.
Savage appeared as a contestant in Strictly Come Dancing in 2011, which was sufficiently long ago not to be relevant to the current generation of under-18s.
Savage’s social media profile was unlikely to make him strongly appeal to under-18s, with only 8,810 social media followers aged under-18 collectively across Instagram, Facebook, and Twitter.

Taking this into account, the ASA ruled that the advert was not likely to be of strong appeal to under-18s, and did not therefore breach the CAP Code.

Harris Hagan insight

Below are our key takeaways from the recent rulings:

Age verification must be robust – do not rely on Twitter. It now appears to be a settled position that if operators wish to rely on the defence that the advertisement is not accessible to under-18s, there also needs to be a backstop of robust age verification controls in place. Self-verification by users and behavioural targeting are not sufficient.
The gambling operator is the most likely party to face the music. The Xhaka ruling demonstrates that the mere promotion of someone else’s tweet by a gambling operator may be sufficient for the tweet to be deemed an advert by the operator themselves. Operators should therefore exercise caution when using promotional tools on social media platforms, such as Twitter Amplify. As a rule of thumb, the same consideration should be given to third party promoted tweets as those that are self-published. It also notable that, although they were approached for comment, the ASA did not bring any action against the original publisher of the Xhaka tweet.
Football pundits could be fair game. The fact an individual is a current (or recent) football pundit does not automatically mean they are of strong appeal to under-18s. Consideration should be taken of the individual’s overall appeal to under-18s, including the time that has elapsed since they were an active football player or coach (if applicable), the team(s) with which they were associated, and any other recent appearances on television and other media.
Celebrities with ‘some’ under-18 followers need not be ruled out. It is notable that Savage’s social media following across three platforms included approximately 8,810 followers aged under 18. Clearly this number does not take duplicates (i.e. followers on two or more social media platforms) into account. However, it is still interesting that the ASA did not consider that this suggested a strong appeal to under-18s. We have yet to find out what number will tip the scales in this scenario – would 20,000, 50,000, 100,000 or even 1,000,000 followers have resulted in a different outcome? We can but wait and see where the threshold lies but, in the meantime, advertisers can take some comfort that for now, there is a precedent that (just) 1,000s of under-18 followers is a relatively safe bet.
More ASA enforcement activity will come. Based on the recent spike in enforcement activity (three rulings in 14 days), we think it is fair to suggest that the ASA’s enhanced monitoring capabilities will increase the frequency and saturation of rulings, particularly in relation to relatively new rules such as the strong appeal tests, which are – to some degree – open to interpretation. But could the increase in surveillance activity inadvertently lead to over-interference, despite that not necessarily being the ASA’s intention? We, for one, will be interested to see whether the ASA’s current trajectory of enforcement activity in the gambling sector will continue.

Next steps

If you would like more information on the strong appeal tests and the associated guidance published by the ASA, please refer to our previous article: Getting it right: how to comply with the “strong appeal” test when using sports personalities to advertise sports betting.

Otherwise, please get in touch with us if you would like to discuss the strong appeal tests further, or if you would like our assistance training your marketing teams to advertise your brand in a compliant, yet commercially viable, manner.

With credit and sincere thanks to Adam Russell for his invaluable research and co-authorship.

01Jun

Gambling updates from the Advertising Standards Authority; lockdown, eSports and children’s exposure to gambling adverts

1st June 2020 Jessica Wilson 338

The Advertising Standards Authority (“ASA”) has recently published guidance on advertising gambling amid lockdown, the marketing of eSports on social media, and a report on children’s exposure to gambling TV ads in 2019.

Gambling advertising during lockdown

As noted in our previous blog posts, the gambling industry is under a microscope during the current COVID-19 pandemic and has been subject to new expectations and guidance. Consideration must also be given to gambling advertising, and the ASA has published a “warning” to gambling operators to “pay even more attention to their responsibility under the Codes during these uncertain times”.

The CAP and BCAP advertising codes make it clear that marketing of gambling products must not be:

irresponsible in its use of content or themes that might exploit vulnerabilities; or
targeted through its content or placement at under-18s.

The global pandemic has created a new context of vulnerabilities and potentially heightened consumer risk to gambling-related harms. The ASA is therefore encouraging people to report gambling ads that:

refer to the COVID-19 crisis or related matters, such as the Government’s lockdown policy; and/or
include claims or themes that are of particular concern in the current climate (for example, ads that refer to relieving boredom, repeated play or personal problems like family difficulties).

The ASA appreciates that these are not new concerns but that they are exacerbated during the current circumstances. The ASA has further noted that it will “take swift action against ads that, in context of the present crisis, are likely to exploit people’s vulnerabilities or encourage irresponsible behaviour”.

Marketing eSports on social media

On 23 April 2020, the ASA published an advice note on the marketing of gambling on eSports on social media. The advice to licensed operators follows the ASA’s study on eSports betting marketing on social media and is to close any potential gaps between the relatively new concept of eSports and the existing CAP and BCAP codes. The advice applies to gambling marketing on all social media platforms, including Facebook, Instagram, Twitter, Snapchat, Twitch and TikTok.

The advice confirms that the CAP code rules that apply to the marketing of gambling on eSports:

are the same as those of traditional marketing on gambling; and
cover social media in the same way as they do all other non-broadcast media.

Whilst the rules are the same for eSports as for traditional marketing on gambling, the advice highlights CAP Code rules that are relevant to marketing eSports on social media, including:

Recognition of marketing: marketing communications must be obviously identifiable and must not falsely claim that the marketer is acting as a consumer, requiring social media marketing posts to be clearly labelled as such. For example, by using “#ad”.
Targeting: operators should take all reasonable steps to ensure advertising is not targeted at under-18s through the selection of media, or platform, or the ad’s content. For example, if gambling marketing can be searched for on a social media platform using terms that are likely to have particular appeal to children and there are no measures in place to protect children from seeing that marketing, then it is likely they will be breaking the CAP code targeting rules.
Appeal to under-18s: marketing must not be likely to be of particular appeal to children or young persons. For example, by using cartoons or by using a social media influencer who is associated with youth culture to promote eSports betting.
Terms and conditions: similar to the traditional marketing of gambling, the terms and conditions of offers of free bets should be made clear in gambling marketing on social media.
Affiliates and influencers: the advice provides a reminder that affiliates of gambling operators must also abide by the targeting and content rule and that gambling operators are responsible for the content produced for them on social media by influencers.

Children’s exposure to gambling adverts

On 22 May 2020, the ASA published a report titled Children’s exposure to age-restricted TV ads: 2019 update. The findings show that children’s exposure to gambling advertising has remained at a similar level over the last six years, since a peak in 2013. Since then, children’s exposure to TV gambling ads has decreased by just under half. Most of those adverts viewed by children were in relation to lottery, scratch cards and bingo.

05May

Keeping Affiliates in Line: “No Fudging”

5th May 2020 Lucy Paterson 354

Ensuring that operators have adequate oversight of their marketing affiliates has been on the Gambling Commission’s agenda for some time, but now appears to be under the spotlight once again. Historically, the Advertising Standards Agency (the “ASA”) and the Gambling Commission have not been shy to take action against operators who they consider have had inadequate oversight of their affiliates, and the current global crisis has again brought the issue to the fore, with concerns that affiliates have sought to exploit the situation for marketing purposes. Whilst the Gambling Commission has no jurisdiction over affiliates, the ASA (which does) has repeatedly ruled that:

both the operator and the affiliate are responsible and accountable for non-compliant advertising, even where the advertisement was the sole creation of the affiliate; and
operators cannot absolve themselves of responsibility for marketing communications where they ultimately reap the benefits.

In a recent message to the gambling industry in the light of the COVID-19 crisis, Neil McArthur emphasised the need for licensees to ensure that their affiliates are “conducting themselves properly” – or the Gambling Commission will not hesitate to take action. A similar message was delivered by his predecessor, Sarah Harrison, at WrB in February 2017, in which she said:

“…my message to is that they need to get their house in order. But far more importantly, my message to operators is there is no ‘fudge’ around this, no equivocation – the affiliates who promote your brand and who drive business to your websites are your responsibility, and it is you who are accountable.”

If you get a mention by the CEO of the Gambling Commission in a keynote address to the gambling industry, it is rarely good; it sets alarm bells ringing. Unfortunately, whilst some operators have improved practices, it seems those bells were not heard by many in 2017.

Unlicensed Third Parties

Affiliates are not licensed by the Gambling Commission although, arguably, they could be licensed under the existing legislation. Our view remains that it has no appetite for licensing affiliates, and it is much easier to hold a relatively small number of operators responsible.

As they are not licensed, affiliates are not bound by the Licence Conditions and Codes of Practice (“LCCP”), though they must comply with both the Code of Non-broadcast Advertising and Direct & Promotional Marketing (known as the CAP Code) and the Code of Broadcast Advertising (known as the BCAP Code) (the “Advertising Codes”).

Despite not being bound by the LCCP, in accordance with social responsibility code provision 1.1.2, licensees must:

ensure that the terms on which they contract with affiliates require affiliates to conduct themselves as though they were bound by the same licence conditions and codes of practice;
oblige affiliates to provide them with the information they need to comply with any reporting requirements; and
have the right to terminate in the event of breach or behaviour inconsistent with the licensing objectives.

There is no doubt that licensees are considered responsible for the actions of third parties with whom they contract, which includes affiliates. The buck very much stops with them. In response to the need for greater oversight and control over affiliates, practical challenges and regulatory risks, many affiliate marketing programmes have been drastically reduced and, in some cases, radically disbanded.

Industry Code for Affiliates

Following Neil McArthur’s CEO Breakfast Briefing on 2 October 2019, three Gambling Commission industry working groups were created, which included the Safer Advertising Online Working Group. We reported on recent updates on 2 April 2020, which included the adoption and implementation – by all affiliates – of a code of conduct. This will be updated and amended on a regular basis to ensure all measures undertaken by the industry will be implemented equally by affiliates. It is expected that this code of conduct will be in place by July 2020 and the Gambling Commission has made very clear that licensees will be “held to account for these commitments” from this date.

The industry code has not been published yet. Affiliates are strongly encouraged to engage with their licensed partners and the Responsible Affiliates in Gambling group, which is an independent body established in May 2019 and chaired by Clive Hawkswood (former CEO of the Remote Gambling Association), set up to help raise standards in the sector, particularly in respect of responsible gambling. Equally, licensees should engage with the Betting and Gaming Council and conduct a comprehensive review of its affiliate programme.

Considerations for Affiliates

Act as if you are licensed yourselves, only without the licence fees. If you do not, you do not have a future in the gambling industry.
Educate yourselves on the legal and regulatory requirements relating to gambling advertising.
The requirements are all readily available online with operators, regulators and, of course, lawyers eager to provide guidance.
Review your training requirements and deliver any additional training.
Make sure your advertisements are legal and not misleading (particularly regarding free bets and bonuses, by stating significant terms and conditions) and socially responsible.
Consider what safer gambling information you should provide.
Ensure you comply with any advertising codes in other countries that you may be advertising in.
Ask your licensed partners for assistance and how they are preparing to implement the new industry code. Some operators have existing marketing guides for their affiliates on the rules and regulations governing marketing in the jurisdictions in which they operate.

Considerations for Licensees

Ensure marketing carried out by affiliates is socially responsible and in compliance with the Advertising Codes.
Encourage affiliates to use the free and paid for copy advice service provided by CAP and the ASA.
Educate affiliates by providing detailed guidelines, including worked examples of compliance and non-compliance.
Review your marketing guidelines and rules, including your marketing approval process and the role of your marketing PML holder.
Review your policy, procedures and controls relating to affiliates, ensuring you have a comprehensive and robust audit approach. This should be led by your marketing PML.
Review your training requirements and deliver any additional training. This may include both employees and affiliates.
Review your affiliate agreements to ensure compliance with social responsibility code provision 1.1.2 (as detailed above), the LCCP, the Advertising Codes and your marketing guidelines and rules, and strengthen where required. By way of example:
- if affiliates can only use material that you have produced in-house, include a term that such material may not be amended; and
- if affiliates can modify or develop content, specify that approval is required before material is published.
Ensure you have adequate remedy in the event of breach such as inclusion of a term allowing you to withhold any revenue share.
Ensure you have the right to terminate easily and promptly in the event of breach or behaviour inconsistent with the licensing objectives.

Affiliates play a critical role for operators, generating traffic and revenues. In addition to recognising the value of affiliates, operators must acknowledge (if they have not already) that those same affiliates now also represent a genuine risk to their business and reputation. Ultimately, licences are a privilege not a right so ensure you have adequate measures in place to protect your licence!

If you would like to discuss any of these issues, including provision of training, please do get in touch with us.