Gambling advertising that targets children? Why the recent letter from the Gambling Commission, ASA CAP and RGA to the industry is so regrettable.

On 20 October 2017, more than 450 UK operators received a letter from the Gambling Commission, RGA and the ASA/CAP (‘the Letter’). It required operators to remove immediately any advertisements on their websites and in third party media ‘likely to appeal particularly to people aged 17 or younger’ and that are ‘generally available to view’ (‘freely accessible’).

The Letter has caused a flurry of activity and questions from online operators about the practical implications, and sparked a number of press comments about how operators must address such an apparently grave lapse.

For me, there are a number of reasons why the Letter is very regrettable. Operators should think carefully before responding to it: whether acting upon its directions, or making representations to its authors. I think that the Letter was premature and that the issue should be the subject of consultation and better informed debate before any further action is taken. This article sets out my reasoning.

Who is the Letter from?

The authoritative power behind the Letter is unclear. Whilst it bears the logos of the ASA/CAP, the Commission and the RGA, it has been written on ASA/CAP letterhead, and the sanctions mentioned at the end of the letter refer exclusively to the Codes on Advertising rather than the licensing conditions or statutory power. So it seems that the ASA/CAP is the moving spirit, even if the letter also appears on the Commission’s website.

Authorship of the Letter matters a great deal. The gambling industry has a right to understand whether it is receiving advice from a trade association (to which the operator may or may not belong), a non-statutory body administering a voluntary code, or a statutory regulator with the powers to revoke licences, fine and even prosecute operators. The consequences for operators, if they are found to have continued the practices of which the Letter disapproves, are not at all clear (perhaps deliberately so), beyond a reference to the CAP Compliance team’s sanctions.

What prompted the Letter?

The Letter openly states that it comes as a reaction to certain press articles in the Sunday Times which were subsequently the subject of comment in the Daily Mail. It is fair to say that the articles are hardly a model of objective in-depth reporting. A Daily Mail article suggests, for example, that gambling companies are “targeting children” in a way which is “just as wicked as drug pushers.” The Mail’s article wrongly concludes that remote gaming is subject to a lighter advertising regime than non-remote gaming and criticises betting for being advertised in conjunction with football and being able to advertise in the intervals around sporting events. The fact that advertising is not normally allowed until after the watershed is dismissed as being an inadequate protection: (“as if children don’t stay up.”) The articles suggest that advertisements “typically portray gambling as a joyous social activity with happy and laughing young people making their bets on smartphones […]”. If that were the case, such advertisements would already be in breach of the CAP and voluntary codes for the industry. They confuse and conflate online and offline gambling, betting and gaming, and cite statistics which are entirely unsupported by evidence. One article states that about 10% of those playing remote games are “problem gamblers,” a statistic given with no source and which is more than ten times higher than the Commission’s own published figures on problem gambling. Besides, the Commission’s own annual survey on gambling among children, paints a clear picture that it is an activity which has declined steadily over the last 10 years. (see http://www.gamblingcommission.gov.uk/PDF/survey-data/Young-people-and-gambling-2016.pdf ). Indeed, the same report, based upon a proper survey by MORI on gambling among children indicated that although advertisements for gambling had been cited by 4% as the stimulus to gamble for the first time, that statistic was more than three times less popular than seeing family or parents gamble. So who is really mostly to blame?

Despite this quite sophisticated knowledge base, there is no evidence that the press’s hyperbolic and erroneous assertions were the subject of challenge or correction by the Commission. To the contrary, it appears that very ill-informed press comment has been allowed to dictate the regulatory agenda, which sets a somewhat dangerous precedent.

One goal behind the publication of the Letter appears to have been to deflect criticism that its authors condoned the type of activities which the press found so self-evidently inexcusable. However, it is clear that the Commission has always been well aware of the state of licensed operators’ homepages and advertising (it has a statutory responsibility for performing regular audits of those sites). Equally, the RGA can hardly suggest that it was ignorant of the look and feel of the websites of its most prominent members.

One cannot blame operators, therefore, from being somewhat surprised to face criticism now for homepages which have been largely unchanged for years and which display games provided by gambling software providers all licensed by the Commission itself. What changed to make this conduct so obviously inappropriate?

Is it really advertising?

It is worth asking whether the presence of a click-through link to a game on an operator’s homepage is actually advertising at all. The answer is “yes,” but only within some forms of regulation and based upon a somewhat narrow technicality in the ASA’s rules. Until several years ago, the ASA’s jurisdiction was limited to paid-for advertising space such as billboards, and it had no power over material on a business’s own website. But in 2010, that remit was widened to treat such spaces as being commercial advertising. Even so, websites are not billboards being placed outside schools, or mailshots targeted at the young: these are the homepages designed for real money adult gambling. Such sites have to be searched for deliberately in order to be found (and are almost universally blocked by parental filtering services). So it can hardly be said that operators are seeking to entice children. There is no suggestion that having icons of the games available on a website constitutes the offence of ‘inviting a child or young person to gamble’ (s.46 of the Gambling Act 2005), an offence which requires the intentional sending of a document, or at the least an act of bringing the gambling to the attention of the minor ‘with a view to encouraging them to gamble.’

But kids love cartoons!

This brings me to my central complaint about the Letter, and one which is a serious fault. It implicitly accepts the press’s assumption that the use of cartoons and topics such as Jack and the Beanstalk or Peter Pan is designed to be attractive to children. It is said that operators are deliberately using such materials to entice children to gamble – what other purpose could such images serve? That is such a serious allegation that it requires careful scrutiny before it is accepted.

I pause to say that I am a parent with an eight year old son. I have no wish for him to be exposed to real money gambling before he is old enough to take an educated view of whether he wants to participate. I also write as someone who has spent over 20 years advising gambling operators on how to make a commercial success of their businesses, during which time I have never seen any evidence of an operator seeking to target children or young people. Operators are deeply opposed to anything which might encourage minors to take up gambling. There are many reasons: first, those who run casinos are often parents too, and understand the point. In addition, they also recognise that any involvement of children with gambling (i) brings criminal consequences and (ii) is just plain bad business. No one wants a child gambling on their site.

So why do online games so often involve cartoon characters?

The first and most obvious answer is that all online games (and even bricks and mortar slot machines) involve animated symbols and signs, whether they are old style lemons, bells and cherries or modern animated leprechauns. Animation is an absolute necessity of all slot style and instant win games. It’s how they work.

Further, to be attractive and playable, the games have to be anchored in some kind of familiar iconography – they have to offer the player a context which turns an otherwise boring and repetitive activity into an entertainment. And so cultural icons of all types are used. Many of those icons may resonate with children, but they are not designed to be attractive to children. They are designed to be attractive to adults. I know that children are keen on chocolate and football. But so are adults.

Taking some examples, Alice’s Adventures in Wonderland, the Wizard of Oz and, yes, Peter Pan, all started as being at least partly intended for children, but they have become icons relevant to and resonant with the whole population. To say that a game themed with Jack and the Beanstalk is designed to “target children” is crass and misguided: it is seeking to use familiar settings and icons which are accessible to a wide population of players. The Magic Roundabout was certainly a series designed for children, but no one under the age of 18 today would have the first clue of who Dougal, Brian Snail and Zebedee were.

And to the argument that advertising using cartoons can only ever be designed to target children, consider the agencies and budgets that have been expended on campaigns featuring characters like Tom and Jerry, Scooby Doo and the Flintstones…for mortgages from Halifax, the Ford Mondeo and Visa credit cards[2]. Anyone for a Babycham?

Unreliable research

I am not aware of any research which demonstrates whether cartoon iconography makes a game disproportionately more attractive to children compared with adults. So I decided to conduct some of my own. Last night, I took the iPad out of my son’s hands, and presented him with the 375 games available on the website casinoland.co.uk. I asked him to pick ten games which visually appealed to him and he might want to play. Scanning the list, he said that they all looked boring but, when forced, chose ‘Live casino lobby’ as a first choice. Others picked included ‘Psycho,’ ‘Sherlock Holmes,’ ‘Monopoly,’ ‘Star Dust’ and ‘Thunderstruck II’ – notwithstanding that none of these has a particularly ‘childish’ animated character theme. Indeed, ‘cute’ animation was studiously avoided. I let my son play one of these games in free mode, but after about a minute he turned away in bored disgust and asked whether he could go back to his iPad[3].

Trying the same test on the 25 year old who shared my office, the selection was somewhat different: ‘Jungle Jim’ was chosen “because it reminds me of something I used to play as a child” and ‘Shangri La’ on the basis that “the red panda is cute.”

Of course, these examples are miles from being a scientific approach – but at least I confess that weakness, and use them only to highlight that drawing an ineluctable link between cartoons and children is wrong. That is the intellectual shortcut that the press has deliberately taken, and that is why it is so regrettable that regulators have blindly followed suit on such an important issue.

A final point that is becoming the subject of more and more focus, (and which the Letter completely ignored): is the lure of “loot boxes” in video games. Google Play and the App store are replete with (non-gambling) games which reward success with unlocked treasure chests, bonus cards and other random-based events. They mimic gambling games, and they usually require real money payment. Such game methodologies offer children an environment much more evocative and preparatory for gambling behaviour than the mere presence of familiar cartoon characters.

Children’s involvement in gambling is a serious issue. But gambling is also business, and the difference between an attractive branded game and a generic slot is counted in millions. The Letter recognises that “there may be difficult and nuanced decisions to be made particularly when imagery might have appeal to both children and adults,” but does not even consider whether to analyse the assumption that “cute cartoons” or traditional fairy tales are actually attractive to children, still less whether the presence of those icons on a casino website will lead to children free-playing slot games and thence beginning underage real money gambling.

What should industry do?

In the last weeks I have had calls from operators who are air-brushing the icons from their homepage to remove leprechauns, rabbits and other cartoon creatures (that will only appear when the game is actually played). The semi-naked cartoons of princesses and superheroes have been left in place on the basis that they apparently only appeal to adults. Is that the right response?

First, I think that we need as an industry to challenge the assumption that cartoon iconography on website homepages is really ‘advertising which is designed to appeal to children.’ It is actually a representation of an adult game, on an adult website. Statistics would help – and the industry should fund its own study, or ask the Gambling Commission to focus on the issue as part of its next survey of children. The Portman Group has for years been a respected body for the drinks industry – and the gambling industry needs an equivalent body if it is to be heard amidst this type of press clamour.

Second, a solution which some have reached for is to insert some kind of gateway page requiring users to provide a date of birth before being able to access the content, like those for some alcoholic products[4]. Is this an effective enough barrier? It arguably is a compromise. But perhaps the press would say that it is actually an enticement to enjoy adult-themed content?

Third, before operators start to blur or erase content[5], there are a whole range of issues to consider about infringement of IP rights or contractual obligations, to say nothing of the challenges where operators take third party content from platforms, or have international websites and do not wish to make the changes that the Letter suggests.

Above all, what is needed is a thoughtful and reasoned approach to this issue, not one which makes hasty assumptions or seeks to impose uncertain rules as to where they stand. Of course it is right for the Gambling Commission to police its licensing objectives and to be a watchdog of the consumer’s interest, but it must be objective and thoughtful in its approach to regulation, and also recall its statutory obligation to permit gambling to operate provided those objectives are protected[6].

[1] A full copy of the letter can be found here: http://www.gamblingcommission.gov.uk/PDF/Ltr-from-ASA-CAP-CG-RGA-final.pdf

[2] See http://bornlicensing.com/11-classic-cartoon-characters-appearing-commercials/. This useful site links to the top ten campaigns using cartoon characters. (Credit to the general counsel of a well-known gaming operator for highlighting the point to me)

[3] I might add that this is the same 8 year old who asked me the other day in relation to a particularly intense shooting game that he was trying to download from the App Store, “What date of birth should I put in to be able play this one?” Any suggestion that children are as naïve as to be attracted to fairy stories, actually reflects an adult naivety about children’s sophistication.

[4] See for example www.budweiser.com or www.carlsberg.co.uk

[5] See for example www.casumo.com

[6] s.22 Gambling Act 2005