May 19, 2021
In his poem ‘As I walked out One Evening’ W. H. Auden sought to express the nature of infinity with some wonderfully quirky images, perhaps more redolent of the wit and nonsense of Edward Lear or the glittering exaggeration of the Elizabethan sonneteers, than of Auden’s own more typical, muscular style of writing. In emphasising the permanence and longevity of his feelings he wrote:
I’ll love you, dear, I’ll love you
Till China and Africa meet,
And the river jumps over the mountain
And the salmon sing in the street.
I’ll love you till the ocean
Is folded and hung up to dry
And the seven stars go squawking
Like geese about the sky.
Having dealt with the ASA on behalf of numerous clients for the best part of thirty years, the writer, too, thought it more likely that China and Africa would embrace, like Penelope with Odysseus returned from Ilium, before he would see from the ASA a decision of such plain common-sense as the adjudication in the case of ‘Marathonbet’ published today. Would that this decision marked the beginning of a new age of even-handedness, objectivity and balance towards gambling advertising, a lawful activity undertaken by an industry that contributes hundreds of millions of pounds to the Exchequer, football and horseracing, and which provides thousands of the cutting-edge, highly-skilled digital economy jobs that our post-BREXIT and post-COVID economy (not to mention our trillion-pound public deficit) are going desperately to need – but an activity which the ASA appears to view in the same light as a nasty rash.
In the case of Marathonbet, the bookmaker advertised to potential customers that it was offering certain pre-match football bets at ‘zero margin’ (i.e. not taking a profit itself from the wager when all the potential outcomes were computed). The predictable complaint was made (as usual by one person, who may or may not be the one person who complains about every gambling advert) and the ASA duly investigated in its usual Inspector Clouseau-like manner. Marathonbet dutifully co-operated as a responsible operator should by furnishing the regulator with comprehensive statistics which showed that it was impossible to achieve a perfect ‘zero’ in every case, but that the deviancies were infinitesimally small. For bets on the result of a particular sampled match in August, the margins fluctuated between 0.0011% and 0.0052%. On further enquiry (based on the figures provided by Marathonbet) a consistent picture emerged wherein the highest margin generated during the promotion was discovered to have been 0.0052%. That meant that, if a consumer had a stake of £200 across all outcomes at the appropriate and proportionate stake levels, they would be guaranteed a return of £199.99 rather than £200. The ASA reverted to the Gambling Commission in Birmingham, which knows about gambling, and Marathonbet’s calculations were duly confirmed.
It is the next part of the judgment that so flabbergasted the writer. The writer would have had no hesitation, had he been advising Marathonbet in the matter, based on the above facts and long experience of dealing with the ASA, that an ‘upheld’ adjudication would have been guaranteed on the above figures. This on the basis that the ASA’s attitude to gambling advertising is, as mentioned above, one of zero tolerance and strict liability. Instead, the ASA concluded that ‘in practice, consumers were not likely to be materially misled by the difference between a 0% margin and a 0.0052% margin’ and that such aberrations did not amount to ‘misleading’ consumers. Usually, even in cases where the ASA is clearly wrong on the face of the record, it refuses to change its mind: readers will remember the notorious Ladbrokes ‘Iron Man’ adjudication of 2017 where the ASA reversed its decision of 24th August 2016 with the volte-face of 17th May 2017, the decision that should quite obviously have been made in the first place. In this light, the Marathonbet adjudication is quite extraordinary.
It is fervently to be hoped that this refreshing new approach from the ASA will be promulgated (the ASA would probably say ‘cascaded’) throughout its dealings with the remote gambling industry. A good place to start might well be the proposed change of the ‘particular appeal’ rule concerning children and young persons to ‘strong appeal’. This proposal, wholly unevaluated in terms of its potential unintended consequences, was made in the ASA’s recent consultation despite the ASA admitting that ‘Underage participation by those aged 11-16 in any gambling activity has declined from 22% to 11% over the past decade; here, ‘gambling activity’ mainly relates to personal betting (for example playing cards with friends) and legal play of lotteries (for example, participating with the consent of parents/guardians)’ and that ‘Children’s exposure to TV ads for gambling represents 2% of the overall number of TV ads they see’. It should not be accepted that children see any gambling advertising, of course, but even the Gambling Act acknowledges that they may on occasion do so as an incident of the advertising being directed at adults: children do not live in a parallel universe and they may not all dutifully go to bed at 2100. But the overall data hardly seems to support such a potentially onerous change to rules which appear already to be having the desired effect (22% to 11% is moving in the right direction by anyone’s measurement). So if the ASA is prepared to exercise common sense in relation to 0.0052% and such exercise is their first utilisation of that scarce commodity in thirty years, at least to the knowledge of the writer, then that presents a nice mathematical challenge as to how long it would take them to exercise common sense where the issue is a 2% issue. The writer’s shaky calculus suggests another 11,538 years?
 See: https://www.asa.org.uk/rulings/marathon-alderney-ltd-a20-1075359-marathon-alderney-ltd.html, accessed 19th May 2021.