December 14, 2018

Advertising is the issue of the day or, as Clive Hawkswood put it recently, the “most high-profile concern”. Voices in Parliament were unanimous in their approval of the steps towards voluntary self-regulation being undertaken by the industry (as reported in another article in our Front Runner blog) but more acute commentators are wondering how long it will be before the industry faces yet further hostile demands. What is it going to take to satisfy the critics? A return to pre-2005 prohibitions? The fair winds of the Blair years which saw the Budd Report and the 2005 Act have given way to the puritan chills of social disapprobation. At the heart of it, at the deepest level, is the  fundamental assumption of modern society that someone else must always be liable for the misfortunes which befall you. This interacts with the paternalist mindset of the political class which disapproves of the idea that the lower orders should be free to spend their income in ‘non-improving’ ways. The synthesis of these two strands of thought – you might better call them assumptions, or frames-of-mind – is that every losing player must have been conned and should not, in any case, have had the chance to spend their money in such an unwholesome way in the first place.

None of this is new. In fact, it is just the latest manifestation of society’s perennial ambivalence towards gambling that has shaped English gambling law since the earliest times. The Unlawful Games Act of 1541 singled out pastimes that the authorities felt distracted the public from more desirable activities – bowling, tennis, dicing-tables, carding-tables and ‘cloysh cayls’ were considered especially distracting to a public who should have otherwise been at mass, or practising their archery for the defence of the realm. Concerns about the financial harm caused by unregulated gaming increased in the eighteenth century when the landed estates of the aristocracy and the gentry could be lost in an evening at cards. Finally, the Gaming Act 1845 took the draconian step of rendering gambling debts unenforceable.

Mixed in with all of this official disapproval was always the uneasy acknowledgment that gambling was never going to go away and that the best that the authorities could hope for was to rid it of fraud, cheating and crime. The first prosecution for cheating at dice is recorded in the records of the Corporation of London sub anno 1311 and what we now know as Section 42 of the 2005 Act (Cheating) has as its great-grandfather Section 17 of the 1845 Act which created the offence of ‘cheating at play’. Sensibly, the Blair government attempted to put the whole business onto a sustainable footing once-and-for-all. In general terms, gambling was to be regarded as a matter of personal choice and a non-pathological leisure activity no different to any other form of interactive digital fun. Provided that it operated within the constraints of lawfulness and social responsibility, including the detailed regulatory implementation of those objectives in the relevant licences, then a person’s choice whether to spend £5 on Camelot or on the mortgage payments was to be their own. The danger that the industry now faces is that this libertarian consensus is beginning to unravel under pressure from the two assumptions described above. Society has become polarised between those with the skills to exploit the massive opportunities offered by the modern economy and those without those crucial skills, whom typical Anglo-Saxon capitalism is fast leaving behind. This breeds a blind resentment against the profitable and successful “them” (whoever they may be and whatever form they may take) that is reflected by – most recently – the gilets jaunes  in France. Marxism itself is discredited but the need for an ‘enemy’ has not disappeared. Gambling businesses are archetypally members of that class of modern entrepreneurs who are perceived to be doing well – the “them” that much of society blames for the misfortune of “us” – and that resentment feeds enthusiastically on lurid stories of personal misfortune to cast further opprobrium at businesses which are lawful, tax-paying, in many cases publicly-listed and in other cases which have been British household names for generations.

So the industry is at something of a crossroads. There have been some instances of gross regulatory non-compliance and instances – too many – where businesses have neglected their customers’ evident difficulties where they should have intervened. One certainly cannot blame the British regulator for its tough line on these matters. But ultimately, when the blitz of in-play ads around live sports has been brought under control, and as society starts to see the fruits of the massive current increase in investment in social responsibility systems, the concern is that the industry will still be in the cross-hairs for some minority voices who have proved themselves astonishingly capable of taking the PR initiative. At some point in the not-too-distant future, someone is going to have to defend the philosophy of the Budd Report and raise a clear voice for remote gambling as a valuable part of the digital economy capable of operating as a fun, well-regulated, socially responsible and morally unobjectionable leisure choice for people from all walks of life.

As published in EGR Intel on 12 December 2018.