Recent decisions of the Advertising Standards Authority of Ireland (ASAI) provide useful guidance for the betting and gaming industry as to where the lines between permitted and not permitted advertising of promotions are drawn. In particular, care should be taken if using phrases such as “Risk Free Bet” or “Money Back Special”. Also advertised headline offers must be consistent with any restrictions or clarifications in the applicable terms and conditions.
“Risk Free” Bet?
In 2016 the ASAI considered an email sent by a bookmaker advertising a “Risk Free Bet” (ASAI Reference: 26230) for customers who downloaded a new app. A recipient of the email complained to the ASAI that he did not think the offer was ‘risk free’. It required punters to place a bet for £5; if they lost this bet they could then receive another free £5 bet. The complainant argued that the label “Risk Free Bet” implied that his initial £5 would be returned if he was unsuccessful.
In its response to the ASAI denying the complaint, the advertiser claimed that “Risk Free Bet” was a term frequently used in the sector and commonly understood to have the meaning given to it (ie that a punter who lost would receive another bet, rather than be refunded their stake). The advertiser highlighted that the offer was described in three steps in the body of the email and the details were not hidden in the terms and conditions. It also stated that as the customer had chosen to receive its marketing emails, he would be familiar with the language used in the gaming industry.
Upholding the complaint, the ASAI determined that “Risk Free” could be understood by some consumers to mean that if they lost their initial bet, their stake would be refunded to them. While the ASAI acknowledged that the body of the email explained the terms of the offer clearly, it still found the advertisement to be in breach of three sections of the ASAI Code relating to honesty, misleading advertising and misleading promotions.
Consistency with T&Cs
In other recent decisions involving the betting and gaming sector the ASAI has emphasised the need for headlines or text in promotional offers to be consistent with the terms and conditions. For example, in a decision delivered in January 2016 (ASAI Reference: 24857) the ASAI held that an advertisement that contained headline text which was subject to an important clarification contained in a footnote was not compliant as there was no asterisk in the headline to draw attention to the footnote. In a previous decision given in 2015 (ASAI Reference: 22538) advertisers were reminded that that it was not compliant to make a headline offer if it was subsequently meaningfully restricted by the terms and conditions.
The ASAI is a self-regulatory body set up by the advertising industry in Ireland to promote standards in commercial advertising in compliance with a Code of Standards for Advertising. While the ASAI Code does not have a legislative basis, commercial marketing communications found to be in contravention of the Code by the ASAI Complaints Committee must be amended or withdrawn by organisations who agree to abide by the Code. In addition, decisions of the ASAI may be taken into account when applicable advertising or consumer protection legislation is being considered. For example, an advertisement which breaches the ASAI Code could, in certain circumstances, also be deemed to constitute a ‘misleading commercial practice’ for the purpose of the Consumer Protection Act 2007 and give rise to civil and criminal liability.