September 21, 2018

Online advertising is huge and advertisers are increasingly moving more of their marketing budget into digital. Where advertisers, like gambling operators, want to use online inventory to promote products which are age-restricted, particular care needs to be taken to ensure that children and young persons, who make up a huge portion of the online audience, are protected from being exposed to these type of ads.

Adjudications from the ASA this week have added more flesh to the bones of CAP’s guidance on Children and age-restricted ads online (June 2017) and it is unlikely to be well-received in the marketing departments of online betting operators who naturally want to target customers and prospective customers in the online space.

CAP’s existing guidance aims to help marketers of age-sensitive products abide by the media placement rules which state that ads for age-restricted products must not appear:

• in children’s media (i.e. that designed for children (under-16s) or children and young people (under-18s) (as appropriate for the product)); and
• in media where children or children and young people make up a significant proportion – more than 25% – of the audience, where the media’s audience is mixed.

Gambling, like alcohol, has long been subject to such rules. The CAP Code states that:

“marketing communications must not be directed at those aged below 18 years …through the selection of media or context in which they appear.” (r.16.3.13)

In order to demonstrate that marketers have taken the necessary steps to target their ads appropriately, they should hold robust audience measurement data to show that they know who will likely see their ad and that this audience can legitimately be targeted with age-restricted content. This requires data known about the likely viewer and data which will exclude those known to be in the protected age category. Using interest-based data in combination with age-targeting tools can better secure against inappropriate targeting of ads to the wrong audience. For the placement of ads via social media this, of course, makes sense – persons as young as 13 are able to sign up for these services and there are no robust age-verification tools in place.

CAP’s most recent advice (August 2018), advises gambling advertisers to take special care when checking the audience profiles of any media they plan to advertise in, to satisfy themselves that they are not at risk of targeting the wrong age groups – on social media, they should:

• take audience composition-based steps to ensure that no user registered as under 18 can view gambling ads; and
• take all reasonable steps to exclude under-age consumers from the targeted audience by using interest-based targeting tools.

Importantly, this latest advice removes the general 25% audience composition threshold for social media, because with social media, ads can (and usually are) targeted at a defined set of users (therefore it is irrelevant that less than 25% of the total platform audience is underage). This echoed the ASA decision against Diageo Great Britain Ltd in January 2018, where a Snapchat lens ad for Captain Morgan (alcohol) was found to be in breach of the alcohol media placement restriction which requires that:

“marketing communications for alcoholic drinks must not be directed at people under 18 through the selection of media or the context in which they appear. No medium should be used to advertise alcoholic drinks if more than 25% of its audience was under 18 years of age.” (r.18.15)

Although the lens was delivered directly to users who were logged into accounts with a registered age of 18 or older, and who were in certain locations, the ASA upheld the complaint. Their rationale being that because the ad was targeted at a defined set of users, it was not relevant that less than 25% of the total platform audience was under 18 – because the platform was popular with under 18s, the audience age and location targeting was not sufficient to ensure that marketing communications were not targeted at children and young people.

A month or so following CAP’s latest advice, sees the ASA finding both Greentube Alderney Ltd with an ad for Bell Fruit Casino and WHG (International) Ltd with an ad for William Hill Vegas, in breach of rule 6.3.13. In both cases, gambling ads had appeared in mobile app games. Like Diageo, the gambling operators had targeted their ads at users who were signed in to their Google accounts as over the age of 18. However, the advertising regulator criticised both operators for not making the most of interest and behavioral targeting tools available to them, such as those available via AdMob (Google’s own ad network for mobile apps).

So what can gambling operators (and other advertisers of age-restricted products) learn from this?

• Advertising online is getting tougher!
• Age-based audience targeting alone will not be enough to demonstrate advertisers have taken all reasonable steps to verify that the audience is not below 18 years of age where:
  • there are other tools available to the advertiser (such as interest and behavioral targeting); or
  • the media itself is popular with the under 18s (at the time the Captain Morgan lens ran, Snapchat was only able to target lenses by a user’s age group and geolocation, yet still, despite the inclusion of the 25% threshold in the wording of the alcohol placement rule, the ASA determined that the threshold was not relevant).
• Taking sufficient care to ensure that ads are not directed at people under 18 seems, when advertising online (note not just on social media), to mean using all tools available to advertisers to exclude children and young persons from the ad’s audience.
• Advertisers cannot rely on assurances from online publishers that their audience comprises the over 18s – if there are tools to be used to further exclude children and young people from seeing the ad, the advertiser must use them.
• Advertisers must know what the ad-tech, being used to place their ads in online inventory, is capable of. If there is functionality to refine audiences, it must be used (and it can only be used if advertisers know about it and know how to use it effectively).