Restrictions on Gambling Advertising -Latest Measures Introduced under the National Consumer Protection Framework

Over the last year, each Australian state and territory government has commenced the implementation of the National Consumer Protection Framework (NCPF).

The NCPF provides for ten (10) minimum measures to be considered, and adopted, by Australian state and territory governments in relation to the conduct of online betting by licensed operators. The purpose of the NCPF is to introduce various regulatory standards across Australia over a period of 18 months (beginning on 26 November 2018), which focus on responsible gambling and harm minimisation in the conduct of online betting.

In December 2018, we reported on the agreement reached between the Commonwealth Government and all Australian state and territory governments to implement the NCPF in respect of online betting services conducted legally in Australia.¹ It has now been almost twelve (12) months since the NCPF was agreed and each Australian state and territory government has introduced laws, regulations and guidelines to give effect to the agreed measures (specifically with respect to restrictions on inducements in gambling advertising). However, at this stage, the practical result is an array of restrictive and inconsistent laws across Australia. Effectively, this presents difficulty for licensed sports bookmakers to adopt a uniform approach to business practices that satisfies the responsible gambling and harm minimisation objectives that the NCPF aims to achieve.

As part of the NCPF, it was agreed that each Australian state and territory would introduce laws that prohibit inducements in gambling advertising before 26 May 2019.

Although each Australian state and territory now has in place laws which restrict the offering and/or advertising of inducements by sports bookmakers licensed in Australia, those laws differ from state to state creating a myriad of different restrictions with which bookmakers are obliged to comply. The complexity of these restrictions is furthered by the manner in which the bookmakers must apply the restrictions to the marketing of their gambling services across different media platforms.

On 26 May 2019, the Northern Territory government introduced a Code of Practice for the Responsible Service of Online Gambling 2019 (the NT Code). The Code imposes on all sports bookmakers licensed in the Northern Territory a prohibition on offering (and advertising) inducements to participate in gambling activity.

Under the Code, any sports bookmaker that is licensed in the Northern Territory is prohibited from:

The NT Code allows direct marketing material to be sent to a person if that person provides express consent to receive such material. However, the NT Code makes no express exception for direct marketing which includes any Sign Up Offer, Refer a Friend Offer or Bonus Bet Offer.

Most of the leading online sports bookmakers in Australia are licensed in the Northern Territory. This means that many Australian sports bookmakers are subject to the inducement restrictions imposed by the NT Code.

While sports bookmakers licensed in the Northern Territory are subject to the restrictions imposed by the Code, those bookmakers remain subject to the laws of each other Australian state and territory, in which the bookmaker has customers –many of those states and territories impose restrictions on the manner in which sports bookmakers are permitted to offer and/or advertise their services. These restrictions are broader than those contained in the NT Code. This is where complexity arises.

For example, further restrictions are imposed expressly on sports bookmakers licensed in Australia in advertising their betting services in Western Australia (WA), New South Wales (NSW) and South Australia (SA).

To implement the NCPF, the WA Government amended the Gaming and Wagering Commission Regulations 1988 (WA) (the WA Regulations) with effect from 1 June 2019. Under the WA Regulations, sports bookmakers are prohibited from offering or advertising a benefit, consideration or reward in return for a person to participate, or continue to participate in gambling activity.

In addition to the prohibitions in the NT Code (which are also contained in the WA Regulations), bonus bets in excess of the amount initially deposited by the customer are prohibited.

Notably, some of the restrictions in the WA Regulations do not apply to certain lower risk gambling activities, such as trade promotions.

An exception in WA to the restriction on gambling inducements exists for any advertising that is communicated directly by a sports bookmaker to persons who hold an account with that sports bookmaker (subject to those customers providing express consent to receive those communications). Importantly, the WA Regulations do not permit those communications to be sent by third parties (such as affiliates). However, this exception does not include direct marketing which includes a Sign Up Offer, a Refer a Friend Offer, or a Bonus Bet Offer.

A further exception exists in respect of the advertising of certain inducements which are published on platforms that provide racing content exclusively (Racing Platform Exemption).²

For some time now, the law in NSW has prohibited sports bookmakers from publishing gambling advertising that is visible in NSW, and which offers an inducement to participate, or to participate frequently in gambling activity.³

Notably, the laws in NSW have imposed, for some time, restrictions on bookmakers licensed in Australia that are broader than those imposed by the NT Code.

On this basis, NSW did not consider any change to its laws was required to implement the NCPF. However, on 7 August 2019, the NSW Government, in response to the recent case involving Ladbrokes and the advertising of its ‘Odds Boost’ product⁴, introduced the Gambling Legislation Amendment (Online and Other Betting) Bill 2019 (the Bill) into NSW Parliament. The Bill was passed on 20 November 2019 (now the Act).

The Act expands the definition of ‘inducement’ to capture the offering of a gambling product (or the offer of a condition or other aspect of a gambling product) that:

(collectively, a Gambling Product Offer).

Also, the NSW regulator, Liquor and Gaming NSW, has issued a revised version of its guidelines (first issued in May 2018) to clarify the gambling advertising prohibitions in NSW.

These guidelines confirm that the advertising of gambling products like the Ladbrokes ‘Odds Boost’ product is intended to be captured by the manner in which the NSW prohibition on gambling inducements will be enforced.

Like WA, an exception exists in NSW in respect of direct marketing communications. This means that any advertising that is communicated directly by a sports bookmaker to persons who hold an account with that sports bookmaker (subject to those customers providing consent⁵ to receiving a communication of this type) would not be subject to the inducement restrictions. However, this is subject (under the Act) to the relevant customer having logged into their betting account within the last 12 months.

NSW also provides a racing platform exemption. This is similar to WA and allows certain inducements to be published or communicated on an existing platform which predominantly provides racing content.

In summary, there is a blanket prohibition in NSW law which will apply irrespective of the direct marketing exception referred to above. This prohibits bookmakers from offering to customers an inducement:

SA has not considered it necessary to amend its laws to introduce additional restrictions on the offering and/or advertising of inducements to the world-at-large by sports bookmakers licensed in Australia. This is due to the fact that the SA authorities consider that the existing laws impose restrictions on sports bookmakers licensed in Australia with respect to the advertising of inducements that are broader than those imposed by the NT Code.

The restrictions on inducements in SA are substantially similar to those of NSW. However, they do not capture Gambling Product Offers, nor do they provide a racing platform exception.

Prior to the implementation of the NCPF, only Sign Up Offers were prohibited in Victoria. However, from 26 May 2019, the Victorian prohibition was extended to include Refer a Friend Offers and Bonus Bet Offers. This applies to ‘wagering service providers’ which includes, among others, sports bookmakers regardless of whether they carry on business in Victoria or elsewhere.

In response to the NCPF, Tasmania, Queensland and the Australian Capital Territory have introduced inducement restrictions which apply to bookmakers licensed in that particular state or territory.

The NCPF also introduces measures including:

• the implementation of consistent mandatory responsible gambling messages across all states and territories on all media platforms including direct marketing, websites and other direct communications to customers;
• the provision of activity statements by sports bookmakers to customers which allow customers to track and monitor their online wagering spending and behaviour; and
• the development and implementation of a national self-exclusion register which ensures that those experiencing gambling harm can exclude themselves immediately from the services offered by all interactive wagering service providers.

It is anticipated that each of these measures will come into effect by 26 May 2020.

With the recent introduction of further gambling inducement restrictions in various states and territories, it is crucial that Australian licensed sports bookmakers (and their agents, including affiliates and media agents) understand the ramifications of the restrictions and, more importantly, ensure that their gambling advertising and direct marketing communication strategies comply with these restrictions.

As key deadlines approach, we will continue to monitor the implementation of the NCPF and report in future Focus Papers on the implications of these measures for sports bookmakers and other industry stakeholders.