With the introduction of the Gambling Act 2005, operators looked forward to a more relaxed advertising regime. One of the effects of the new Act was to remove the prohibition on advertising an “invitation to subscribe any money or money’s worth…” as previously contained in s.42(1)(c) of the Gaming Act 1968. Rather unexpectedly however, this prohibition continues to vex advertisers and broadcasters as a result of the operation of article 130(1)(c) of the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 which replicates the wording of the old s.42(1)(c) and applies in Northern Ireland. Carl Rohsler and Laura Perkins of Hammonds LLP consider the article 130(1)(c) restriction and make some suggestions on a common approach which would provide advertisers and broadcasters alike with a clearer framework for the review of gambling advertisements.
- Applicable legislation
1.1 The majority of broadcasters do not split their content feed which means that gambling advertisements that they show are, generally speaking, broadcast both in Great Britain and Northern Ireland. As a result, such advertisers must comply with Northern Ireland gambling legislation in addition to the Gambling Act 2005 (the Act). Whereas the Act repealed s.42(1)(c) of the Gaming Act 1968 (GA 1968), its restrictions live on where advertisements are broadcast in Northern Ireland as a result of article 130 of the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (the Order). The prohibition in article 130 is identical to s.42 of the GA 1968, except that GA 1968 referred to the public in Great Britain and the Order refers to Northern Ireland. Given the similarity, it seems reasonable to suggest that a similar approach should be adopted in relation to interpretation. Practitioners will know that Clearcast has, since September, been asking advertisers to provide legal opinions to accompany their advertising scripts. But in some cases, even though Clearcast has approved the copy, broadcasters are refusing to air the material.
Restrictions on advertisements relating to gaming
130.(1) Except as provided by this Article, no person shall issue, or cause to be issued, any advertisement- (c)inviting the public to subscribe any money or money’s worth to be used in gaming whether in Northern Ireland or elsewhere, or to apply for information about facilities for subscribing any money or money’s worth to be so used, and, subject to paragraph (6), any person who contravenes this paragraph shall be guilty of an offence.
(8) In this Article-
“advertisement” includes every form of advertising, whether in a publication or by the display of notices or by means of circulars or other documents or by an exhibition of photographs or a cinematograph film, or by way of sound broadcasting or television, or by inclusion in any programme service (within the meaning of the Broadcasting Act 1990) other than a sound or television broadcasting service, and references to the issue of an advertisement shall be construed accordingly;
“the public” means the public in Northern Ireland, and includes any section of the public, however selected.
- Analysis of article 130(1)(c)
2.1 Article 130(1)(c) clearly allows some forms of advertising to take place. It would have been quite possible for the language to exclude advertising altogether, or to create a more severe restriction – such as “inviting any person to engage in gambling” or “encouraging any person to take advantage of any facilities for gambling”. In fact, the restriction is quite a precise and limited one – “inviting the public to subscribe money”. The words do not extend every possible form of advertisement. Indeed, one of the rules of statutory interpretation (expressio
unius est exclusio alterius) provides that the express provision of one matter impliedly excludes other matters from its ambit. To take a simple example, a provision relating to “poultry” would implicitly refer to ducks, chickens and turkeys, but a provision applying to “chickens and turkeys” would not be interpreted as applying to ducks. Thus, the focus on “invitations to subscribe money”, by implication excludes other forms of invitation, such as mere invitations to gamble.
2.2 A second rule statutory interpretation also assists. This is the general rule applied by the criminal courts that, where a statutory provision defines a criminal offence, it should be interpreted narrowly – since the consequences of a liberal or non-literal interpretation are more severe than in other situations.
2.3 The second part of article 130(1)(c) is designed to prevent avoidance of the scope of the first limb. It would be wrong if one could place an advertisement which avoided article 130(1)(c) simply by saying “please send off a letter and we will send you further information about how to subscribe money”. But it is important to note that the second limb of the definition is tied quite explicitly to the same limitation as the first part of the section – the prohibition relates to applying for information about facilities for subscribing money or money’s worth. There is no prohibition on an advertisement which suggests to the punter that he may apply for further information about the games available, the prizes for a tournament, the location of the casino, its rules and so on. The prohibition is restricted to any invitation to apply for information about the methods or means by which money can be subscribed.
2.4 What does “invite the public” and “subscribe money” mean?
An “invitation” appears to indicate something active; a proposal or an offer made to the public. It is more than simply the stating of facts from which someone could decide to make a decision. For example, an advertisement which read “Oxford is the finest university in the world” is not an invitation to apply for entry to that university. Such a statement should be contrasted with an advertisement reading “Apply to Oxford: the finest university in the world”.
It seems fair to read “subscribing money” as something both active and precise, meaning either sending money or making arrangements such that money is available to be used at the gaming opportunity.
2.5 Suggested general approach
Clever analysis is all very good – but does taking the above approach actually yield a practical result? Can one mark out a category of “invitations to subscribe money” and draw a sensible line between that category and other types of invitation? In other words, does this interpretation actually create a reasonable balance between advertisements which focus upon the mischief at which the law seems to have been aimed and permits those which are no more than fair and reasonable publicity? In the table we have tried to set out some examples of commonly used phrases, with commentary on whether they are an invitation to subscribe money.
2.6 Other considerations
2.7 Are there other ways of attacking the problem? One idea (for advertisements relating to Tournaments) would be to offer a free entry mechanism. It seems hard for any advertisement to be an invitation to subscribe money if, as a matter of fact, the individual does not have to do so when they arrive at the site. The position might be compared with the old “no purchase necessary” route in consumer promotions.
2.8 A further suggestion is to include a statement to the effect that the offer within the advertisement is “not available to citizens of Northern Ireland”. Article 130(8) of the Order specifically defines “the public” as the public in Northern Ireland. It would therefore appear reasonable that an express exclusion of that public could not also be an invitation to them to subscribe money. This is a practice already used in relation to advertisements for car insurance in Northern Ireland and there does not appear to be any reason as to why this approach cannot be applied to gambling advertisements, enabling gambling advertisements to take full advantage of the freedoms under the Act.
2.10 The Northern Ireland legislation is likely to be amended in the not too distant future to bring it in line with the Act, at which point the current issues may finally fade away. However, until then, a consistent approach would assist broadcasters and advertisers to make an informed decision when confronted with an advertisement for gambling. It is hoped that by demystifying this strange little niche, everyone may benefit going forward.
This Article first appeared in the November 2008 edition of World Online Gambling Law Report