Advertising Standards Authority’s Stringent Approach in Enforcing the CAP Code, Particularly with Respect to the Protection of Children and Young People

United Kingdom (August 18, 2023)

Who: The Advertising Standards Authority (ASA); the Committee of Advertising Practice (CAP) and LC International Ltd t/a Ladbrokes.

Where: United Kingdom

When: January 2023 and February 2023.

Law stated as at: 4 August 2023

What happened:

In January and February 2023, Ladbrokes promoted two tweets: first of which showed two images of Premier League manager Eddie Howe, with a large “V” in-between them captioned “19TH IN 2022 V 3RD IN 2023. EDDIE HOWE’S ONE-YEAR MASTERCLASS”. The second tweet featured a headline of “Ladbrokes NEXT MANAGER TO LEAVE ODDS”. Names and images of four Premier League managers (David Moyes, Frank Lampard, Brendan Rodgers and Gary O’Neil) were underneath the text. Each manager had odds listed next to their name. As both ads were posted in paid-for online space, they were marketing communications and in the UK Code of Non-broadcast Advertising and Direct & Promotional (CAP Code)’s remit.

Another promoted tweet for Ladbrokes featured an image including Jake Paul, captioned “[boxing glove emoji] @TommyTNTFury beat @JakePaul by split decision last night. So, we’ve got to ask the question… What’s next for Jake Paul? Vote here now [downward pointing finger emoji]”. At the bottom of the tweet was a poll with the choices “Win the re-match”, “Head to the MMA”, “Return to YouTube”, and “Join the WWE”. The ASA challenged if these ads included individuals which were likely to be of strong appeal to under 18s.

Response

Ladbrokes responded to both claims stating that the ad was not in breach of the CAP Code as there were no calls to action, promotional offers or links back to the Ladbrokes site. Second, in relation to the Jake Paul tweet Ladbrokes stated that their tweets were age gated and could not be accessed by users unless Twitter had accepted their age as being over 18.

Upheld

According to the CAP code, marketing communications for gambling products must not include a person or character whose example was likely to be followed by those aged under 18 years or who had strong appeal to those aged under 18. CAP guidance asserts that sportspeople involved in clearly adult-oriented sports, who were “notable” stars with significant social media and general profiles that made them well-known to under 18s, were considered moderate risk in terms of how likely they were to be of strong appeal to under 18s.

The ASA considered that under CAP guidance, Premier League football teams are considered at high risk of being of strong appeal to under 18s. The ASA also considered the proportion of under 18s who play football, the infrastructure and participation around the sport, as well as the high media profile of media dedicated to engaging under 18s. At the time of publication Eddie Howe, David Moyes, Frank Lampard, Brendan Rogers and Gary O’Neil were all Premier League managers who would be well known to football fans (including children). Despite the low follower count of Eddie Howe, this led to the conclusion that the advert breached the CAP Code (16.1, 16.3 and 16.3.12) and must not appear again in the current form.

For the tweet featuring Jake Paul, the ASA considered that Jake did not have any registered under-18 followers on Twitter (where the ad had been published, and his age demographics on TikTok, YouTube and Instagram were predominantly over 18. Despite this, as Jake Paul had large numbers of followers that were under 18, he was of inherent strong appeal to under18s. This was also aided by his feature on the children’s TV programme “Bizaardvark” from 2016 to 2018 on the Disney Channel, which likely garnered an under-18s fanbase. It was therefore concluded that Jake Paul had strong appeal to under 18s, rendering the ad irresponsible as it breached CAP Code rules 16.1, 16.3 and 16.3.12.

Why this matters: This ruling shows the stringent approach of the ASA in enforcing the CAP Code, particularly with respect to the protection of children and young people. Businesses should be wary to balance the use of public or social media figures in promotional material with ensuring CAP code compliance. Interestingly, the ASA commented that the ads would have been acceptable if they had been posted in a medium under 18s could be entirely excluded. Therefore, platforms which self-authorise age gating should be particularly wary of this.

SOURCE: Osborne Clarke