The Advertising Standards Authority (“ASA”) recently assessed a post made by Dribble Media Ltd t/a Midnite (“Midnite”) on social media platform ‘X’ depicting an AI-generated video of footballer Trent Alexander-Arnold delivering a parody farewell speech to his Liverpool teammates. The ASA determined that the post was in breach of rules 16.1, 16.3 and 16.3.12 (Gambling) of the CAP Code (“Code”) due to the inclusion of Alexander-Arnold as a person with strong appeal to those under 18 years of age.

The Post

The video was published on Midnite’s ‘X’ account at the time of Alexander-Arnold’s departure from Liverpool football club, and was accompanied by an additional post stating that the initial post was an AI-generated parody not endorsed by real players. The additional post also included the BeGambleAware messaging and displayed the words: ‘Safer gambling:18+’, indicating that the content was aimed at those aged 18 and over. Midnite maintained that the video was intended to be editorial content representing topical football humour and was not designed to be marketing communication associated with the promotion of their platform.

Issues

The ASA assessed whether:

• the post was advertising falling within the scope of the Code (“Issue 1”);
• the post breached the Code due to the inclusion of Alexander-Arnold as a person who has strong appeal to under-18s (“Issue 2”).

Assessment of Issue 1

Editorial content – meaning content created for an audience that does not directly promote a service or product – is not caught by the Code, but marketing communications on ‘non-paid-for space online under [a company’s] control… directly connected with the supply or transfer of goods [or] services’ are.[1] The ASA assessed various elements that could bring the content within the scope of the Code as a piece of advertising, including that it appeared on a non-paid-for online space (Midnite’s ‘X’ page) under Midnite’s control. The ASA also considered whether the post was directly connected with the supply of betting services.

The ASA assessed several factors, including: Midnite’s football betting offering and the timing of the post, published during Alexander-Arnold’s transfer to Real Madrid; Midnite’s watermark being visible throughout the video; and the BeGambleAware messaging in the subsequent post. The ASA deemed that these factors, in conjunction with the post’s purpose as a form of brand promotion, resulted in a direct reference to gambling. Therefore, the post fell within scope of the Code as it was directly connected with the supply of betting services.

Assessment of Issue 2

The Code prevents marketing communications for gambling products likely to be of strong appeal to children and young persons, which includes the use of a person who has strong appeal to under-18s. Following CAP Guidance, elite-level football players were flagged as individuals likely to appeal strongly to children and young persons, and Alexander-Arnold was deemed particularly recognisable as a member of the England national football team.

The ASA’s key consideration involved the medium in which the post appeared. Despite ‘X’’s implementation of protection policies for under-18s with respect to gambling, users can self-verify their age and can consequently falsely claim to be over 18. Various Ofcom reports conducted between 2022 and 2024 indicated that a notable proportion of people under 18 used ‘X’ as a social media platform, with the percentage of users increasing with each age category, and the social media reach of ‘X’ amongst 15–17-year-olds estimated at 1.4 million.

Importantly, a 2022 Ofcom report indicated that 32% of 8-17- year-olds had a registered user age of 18 or above on at least one social media account. Consequently, the ASA considered it was likely that a significant number of under-18s could access content intended for those 18 and over and concluded that the post was irresponsible. For these reasons, the post was considered to have breached the Code and Midnite was instructed to refrain from posting in the form complained of.

Comments

The preface to the Code makes clear that editorial is ‘specifically excluded’ from the Code’s scope. Less clear, however, are the parameters for categorising editorial content. An ASA news article published in July 2024 (‘Odds are your gambling post is an ad’) reminds us that any content directly connected to a product or service to ‘sell something’ will be caught by the Code. This imprecise wording gives the ASA wide scope to establish whether a piece of content does or does not fall foul of the Code.

In this case, there were numerous factors that the ASA assessed that ultimately categorised the post as advertising, including the timing of the post, the messaging, and the branding affixed to the video. Notably the ASA also considered the post’s purpose as a piece of content intended to achieve some degree of virality, that would indirectly lead viewers to engage with Midnite and use their products. Operators should be aware that humorous content, including ‘memes’, and even commentary on current events, are likely to drive social media users to visit the poster’s page, and follow links to their website or other business offerings from there. This means, if content is created by a brand and is clearly associated with the brand, there is a high chance that the ASA will consider it to be promoting products or services.

The ASA’s assessment in this situation also highlights the gap between social media safeguards for young people and content they can access online. Sites that rely on self-certified age gating pose the risk that content will always be assessed under the strong appeal to children lens. Therefore, operators should always consider this risk when creating content for social media.

References

[1] https://www.asa.org.uk/advice-online/remit-social-media.html