New Rulings on the ‘Strong Appeal’ Test for Gambling Ads Featuring Sports Personalities

April 25, 2023 | Advertising

UNITED KINGDOM (April 20, 2023) — The ASA has published a further ruling to illustrate when sports personalities in gambling advertisements may have ‘strong appeal’ to under-18s

Mediawrites recently reported on two ASA rulings, one involving a television advert for Paddy Power featuring Peter Crouch and the second a promoted tweet for SkyBet featuring Micah Richards. Further information on these rulings can be found here.

These rulings provided context on the October 2022 change to the CAP and BCAP code, whereby the test for whether ads would have ‘particular appeal to children or young persons’ was replaced with a stricter test of ‘strong appeal’. ASA guidance on the change categorised footballers as a low, medium or high risk depending on the nature of the footballer. The latest ruling from the ASA provides further insight into this but also illustrates the challenge advertisers face in assessing whether a sports personality is likely to fall foul of the ASA’s new standard.

Betvictor ruling

The ad at issue was a Facebook ad for Betvictor featuring an image of Jordi Alba and Sergio Busquets.

Betvictor argued these individuals were not likely to have strong appeal to under-18s as they did not fall within the ‘high-risk’ category of footballers likely to have ‘strong appeal’ to under-18s for the following reasons:

Club: the players were not star players at FC Barcelona. They were not attacking players scoring many goals and had never scored against a UK team. The last time either played against a Premier League team was 2019. As such, they were medium-risk category players.
International: neither player had recently played for Spain against a UK international team. Despite both players winning the 2010 World Cup and 2012 European Championship, under-18s who would have watched these events and formed attachments to the players would now be over 18.
Sponsorship: neither player had high-value sponsorship deals with major UK brands or a strong social media profile with those aged under 18. Busquets had not posted to Twitter since May 2019 and Jordi Alba’s pages and posts were in either Spanish or Catalan.
Searches: search engine data showed the players had relatively few UK searches compared to top players. Referring the previous rulings, Busquets’ searches were 15% of Micah Richards’ and 17% of Peter Crouch’s, whilst Alba’s were 13% of Micah Richards’ and 15% of Peter Crouch’s.
Medium: the ad was paid-for to ensure it was targeted at users aged 25 and over. Betvictor said data from Facebook indicated 100% of the post’s viewers were over the age of 25.

Despite these arguments, the ASA upheld the complaint and deemed the players were in the ‘high-risk’ category for the following reasons:

Club: FC Barcelona is a very well-known ‘top’ club under the CAP guidance. Both players were current players for the club, had won many titles there (including European trophies) and made many appearances for the club.
International: the players were well-known members of the Spanish national team, playing in the 2022 FIFA World Cup and the 2021 European Championship, where they played in the Semi-Final against Italy in London at Wembley. These events had a large amount of media coverage in the UK and would have been of interest to under-18s. The fact Busquets captained Spain at both competitions meant he would be more likely to have strong appeal to under-18s.
Medium: as Facebook was self-verified and did not have robust age verification processes, under-18s could not be excluded from the audience with the level of accuracy required.

The ad was irresponsible and breached the CAP Codes 16.1, 16.3 and 16.3.12.

Lessons

This ruling provides useful commentary on the issue of using footballers in gambling advertisements:

Career success: players with successful careers who have won many trophies are more likely to be deemed by the ASA to be in the ‘high-risk’ category.
Current players: whereas the ASA did not uphold a ruling against the ads featuring Micah Richards and Peter Crouch, partly based on the idea under-18s would be less interested in pundit discussions, this ruling relating to current players was upheld showing these players present more of a risk. It seems that it will be very difficult to show that an active player at a ‘top’ club will not be of strong appeal, even if that club is abroad and the players speak (and post) in a different language. Given Micah Richards and Peter Crouch received far more UK searches, this comparison is of particular note.
Relevance in the UK: even where players have not played a significant amount of games in the UK, for example by playing for UK teams or against UK teams, then they may still have strong appeal to under-18s if they have played in international tournaments which receive a significant amount of media coverage or involve games which are played in the UK.
Exposure to under-18s: even if data indicates that the players have a low amount of UK under-18 followers or the post has received a limited amount of views from under-18s, there may still be a likelihood of ‘strong appeal’ to under-18s. This is particularly apparent given the comparison made between these players and Micah Richards and Peter Crouch, who despite receiving far more search engine searches in the UK were not deemed to have ‘strong appeal’ to under-18s. It is advisable to ensure the ad is only displayed on mediums where there are sufficient age verification processes in place. The fact that the ASA considered that it would have been acceptable for the ad to appear in a medium where under-18s could be entirely excluded from the audience is a testament to this.

Article By: Elizabeth Dunn and Callum Granger.

See the original article.

SOURCES: Bird & Bird LLP – Lexology.