May 17, 2017

Today we see common sense prevail as the ASA reverses its controversial ‘Iron Man’ adjudication against Ladbrokes. The ruling in August 2016 held that Ladbrokes’ Iron Man 3 online slots promotion was “of particular appeal to children or young persons“, and breached regulation 16.3.12 of the CAP Code, despite the fact that it was only sent to customers validated as over 18. The reversal of this decision highlights the importance of appropriate placement of ads for restricted products but still leaves a question mark over how data will be used to define a particular audience.

The ASA’s codes of practice, the CAP Code and the BCAP Code, as well as the Gambling Industry’s own Code for Socially Responsible Advertising, contain some form of prohibition of advertising gambling products to children and minors. In fact, section 1(c) of the Gambling Act 2005 states that “protecting children” is one of the licensing objectives. This emphasises the importance the Gambling Commission and the UK Government place on protecting children from being subjected to gambling advertising.

The CAP Code addresses advertising gambling products to children in rule 16.3.12 which states:

“Marketing communications must not … be likely to be of particular appeal to children or young persons, especially by reflecting or being associated with youth culture.”

Whilst a literal interpretation of this phrase would lead one to determine that a gambling advertisement may appeal to both children and adults but must not be weighted towards children, importantly the ASA appears to take a narrower view. The ASA’s ‘Guidance on the rules for gambling advertisements’ (applicable to both broadcast and non-broadcast gambling ads), contains the following specific guidance in respect of children and young people (underlining added):

“In general, the [CAP and BCAP] Codes requires marketing communications for gambling products to be socially responsible, with particular regard to the need to protect children, young persons and other vulnerable persons from being harmed or exploited. For the purposes of the Codes, “children” are people of 15 and under and “young persons” are people of 16 or 17. One way in which the Code seeks to protect children and young persons is to prevent betting or gaming ads appealing particularly to them. Advertisements and marketing communications should not exploit the susceptibilities, aspirations, credulity, inexperience or lack of knowledge of children, young persons or other vulnerable persons. They should also not be likely to be of particular appeal to children or young persons, especially by reflecting or being associated with youth culture. An advertisement featuring a character that particularly appeals to children is likely to fall foul of the rules. Marketers should be mindful that the use of cartoons or licensed characters, such as super heroes and celebrities popular with children, must be used with a due sense of responsibility. In other words, advertisers should take care when using cartoon-like images; they might be acceptable if they are adult in nature but marketers run the risk of appealing to under-18s if cartoon images are too childish in their execution; and that might be a problem when advertising gambling products. However, the ASA will consider whether advertisers have taken reasonable steps to prevent under-18s from viewing ads (for example age-gating of online ads) and the likely age of the audience viewing the ad.“[1]

The ASA guidance specifically addresses the use of “cartoons or licensed characters” and makes it clear that use of these characters in gambling advertising will be strictly regulated. Importantly, this guidance clearly indicates that animated characters may be used in marketing but that operators should act responsibly, ensure the use of the animated characters is adult in nature, not be childish and take reasonable steps to prevent under-18s from viewing the advertisements.

It is not surprising that in response to the ASA’s investigation of whether Ladbrokes’ use of the ‘Iron Man’ character in its marketing campaign was likely to be of ‘particular appeal to children‘, Ladbrokes focused on the fact that the relevant copy was contained in an email offer sent only to age-verified customers – what, one assumes, could certainly be regarded as ‘reasonable steps‘ to prevent the under-18s from viewing the advertisement, given no person under the age of 18 received it. In further support of its argument, Ladbrokes also submitted that the Marvel Comics fan base in the under-18 group was 6.39%: a number which hardly supported the suggestion that the animated character was of ‘particular appeal‘ to children. Yet, despite Ladbrokes’ arguments, the ASA decided that that the ‘comic book nature‘ of the character meant that it did indeed have ‘particular appeal‘ to children and any data that might suggest otherwise did not fly; quite the policy decision.

Following the ‘Iron Man’ adjudication, marketers of gambling advertisements were left aghast, stuck between a rock and a hard place: on the one hand, the ASA’s own guidance remained published and unmodified, stating that the ASA would evaluate “reasonable steps” taken to prevent children and young people from viewing restricted ads, yet the decision upheld against Ladbrokes suggested that any ad copy that may have “particular appeal” to children, could be in breach of the Codes even if it is never seen by a child or young person and is confined to age-gated media.

In April 2017, the best part of a year after the ‘Iron Man’ decision, the ASA issued further guidance on ‘Media placement restrictions: protecting children and young people’, intended to support marketers in demonstrating that they have taken reasonable steps to limit exposure of marketing for sensitive/age-restricted products from appearing in media for: (i) children or children and young people; and (ii) were children or children and young people make up a significant proportion of the audience. That guidance specifically stated that marketing communications could be targeted “through the use of data, when creating the audience for the marketing communication, to include or exclude individuals on the basis of their age or other relevant criteria” – e.g. a targeting direct mailing on the basis of account data that provides a reasonable expectation of their age, just as Ladbrokes had done in their Iron Man email. The guidance further stated (underlining added):

“The ASA is likely to expect marketers to demonstrate that they have taken all reasonable steps to ensure that ads that attract media placement restrictions are placed appropriately….

As a basic principle, age data – held on a direct marketing list or through a user’s account on an online platform – should be used to exclude the protected age categories under the relevant rule. ”

In anticipation of CAPs expected guidance on the use of targeting in online environments such as social media platforms, the reversed decision from the ASA in respect of Ladbrokes’ Iron Man campaign brings marketers some comfort that placement of age-restricted advertisements, as we first thought, plays an important role when deciding whether CAP Code rules 16.1 and 16.3.12 have been breached.

Importantly, however, this decision highlights that despite data in support of Marvel’s audience being largely adult, the ASA decided that Iron Man was a popular character that would appeal to many adults but considered its comic book nature, and the availability of various related toys, meant it was likely to have particular appeal to children and young people. Nevertheless, the fact that Ladbrokes had targeted the email to ensure it was extremely unlikely that anybody under 18 years of age would see the ad, it was not irresponsibly placed.

[1] Section 2, page 5 of the ASA Guidance.