On 1 March 2014, the South Australian Gambling Codes of Practice Notice 2013 (the Notice) came into effect. The Notice sets out requirements that relate to, for example, gambling advertising, pre-commitment, gambling venue operations and applies to all gambling operators that operate in South Australia and/or market their services to South Australians.1
Despite the Notice having been in force for some months, some wagering operators have experienced difficulties implementing the requirements set out in the Notice.
In practical terms, compliance with the South Australian requirements means that wagering operators (and their advertising agencies) often have to choose between one of three options:
- prepare a version of their marketing collateral which is South Australia specific. However, this may not be practical if an operator wishes to advertise on subscription television as, unlike free-to-air television, advertisers wishing to advertise on subscription television cannot exclude certain states/territories – all commercials broadcast on subscription television are broadcast nationally; or
- ensure that all advertising complies with South Australian requirements; or
- cease advertising in South Australia. Again, this may be impossible if an advertiser wishes to broadcast television commercials (TVCs) on subscription television.
Each of these gives rise to various commercial difficulties (and resulting costs) and it is clear that the Notice has resulted in an increased compliance cost for nationwide marketing for most Australian wagering operators. Set out below are some of the key points for the marketing team of each wagering operator (and their advertising agencies) to understand when advertising in South Australia.
The Notice applies to ALL forms of advertising
“Gambling advertising” is defined broadly and extends to advertising across all channels, including radio, television, venues, online and also marketing via text messages.
The Notice contains both:
- a general requirement that all advertising must include the “expanded” warning message2 unless it would be unreasonable or impracticable, in which case the “condensed” warning message3 must be displayed (clauses 17 and 18); and
- additional requirements that are specific to different forms of advertising.
To illustrate, distinctions exist depending on the type of television advertising. For example, the requirements that apply to the display of the warning message during a plug featuring a celebrity are different to the requirements that apply to a plug that does not feature a celebrity. Separate requirements apply to TVCs other than plugs – see below. Additionally, the Notice restricts the hours during which television and radio advertising may be broadcast to South Australians. In effect, these restrictions apply nationally to advertising broadcast on subscription television.
Responsible gambling message – size/space requirements
The Notice contains very specific requirements in respect of the display of the responsible gambling message: For example, in respect of any advertising in print media, the mandatory warning message:
- must be presented in a font, in a colour and with sufficient contrast such as to make it distinct; and
- must occupy at least 10% of the space occupied by the advertising (clause 26).
For a TVC (other than a plug), the message must:
- occupy at least 25% of the screen area for at least one sixth of the length of the advertisement; or
- occupy the whole of the screen area for at least one tenth of the length of the advertisement (clause 22).
The South Australian Independent Gambling Authority (SA IGA), which is responsible for enforcing the Notice, has expressed the view that, where the Notice requires that a certain amount of space be dedicated to the display of responsible gambling message, that space must not include any other wording. This suggests that wording that has been included in the TVC to comply with the rules of other Australian jurisdictions relating to the display of responsible gambling messages must not be located in the same space as the message required under the Notice.
It is not difficult to see why the Notice has increased the cost of advertising – wagering operators find themselves taking steps to ensure that national advertisements meet the specific requirements of each of South Australia and the other States/Territories.
Is there an exemption? Yes, the requirements may be waived or varied but this must be done formally.
Betting operators covered by the Notice may apply to the SA IGA for a dispensation in respect of certain requirements. Examples of recent applications for dispensation include those in respect of, for example:
- clause 17(1) of the Notice which stipulates that all gambling advertising must include the expanded warning message; and
- clause 22(2) of the Notice which sets out onerous requirements on the display of a mandatory warning message as part of a TVC.
Some of the requirements in the Notice are identified as being “variable by a management plan”. Accordingly, wagering operators may propose a management plan (for approval by the SA IGA) which sets out the manner in which the relevant operator proposes to address the relevant variable requirements of the Notice. This allows the wagering operator to comply with substitute conditions in place of the express requirements in the Notice. These conditions may mirror the requirements of other Australian jurisdictions or may be requirements that are self-imposed by the wagering operator.The SA IGA grants dispensations typically for a period of a few months. These dispensations may then be renewed (subject to the SA IGA’s discretion to grant this renewal).
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Given the complexity of the requirements of the Notice, it is not difficult to see why many wagering operators have opted to submit to the SA IGA for approval applications for dispensation and/or proposals for management plans.