Last year, CAP published an update to clarify the ASA remit over marketing communications on websites, apps and cross-border platforms (including social media). CAP accepts that the global and fast-evolving nature of the internet raises detailed remit questions that were not fully be answered by the update. For example, questions were raised over the extent to which the ASA’s remit covers gambling provider communications in social media content marketing: i.e. the creation and sharing of videos, blogs, and social media posts that do not explicitly promote a brand, but which are intended to stimulate interest in the gambling provider’s products or services.

CAP says that the ASA and the Gambling Commission have a common understanding that all social media content published by licensed gambling operators must comply with the standards and protections set out in the CAP Code, which ensure protection of under-18s and other vulnerable groups from the potential harms associated with gambling marketing.

The ASA regulates commercial communications in marketers’ own spaces online that are likely to have the effect of “selling something”, i.e. content that can reasonably be considered “advertising”. However, the ASA cannot regulate everything in the online space. One of the key exclusions, inspired by the need to protect freedom of expression, is for editorial content (e.g. commentary or opinions on recent events and “memes”), which gambling social media accounts sometimes include. This has been described by researchers as “content marketing”, i.e. no direct product references, calls to action or links to operator websites.

Advertising in social media spaces controlled by marketers has long been subject to the CAP Code. Further, the vast majority of “content marketing” is effectively deemed by the ASA to “sell something”. Therefore, such content marketing is also regulated under the CAP Code.

CAP says that the advertising of gambling products raises consumer protection issues because of the potential for the products to harm some people. Marketing communications from gambling operators must therefore comply with the strict set of rules set out in the Codes. CAP recognises, however, that there is potential for some social media content to fall outside the ASA’s enforcement remit on the basis that it is considered not to be directly connected with the supply of the gambling product, e.g. where there are no direct, or significant indirect, references to gambling products.

To ensure nothing falls between the gaps, the ASA and the Gambling Commission have agreed that:

• the ASA will continue to consider complaints about social media ads brought to its attention on a case-by-case basis in line with its existing approach to remit decisions;
• in limited scenarios where complaints about operators’ social media are deemed not to be within remit, the ASA will refer them to the Gambling Commission; and
• the Commission will consider provisions under its Licence Conditions and Codes of Practice (LCCP), which sets out the rules for operators licensed to transact with consumers in Great Britain and will consider acting in line with its Statement of Licensing, Compliance and Enforcement policy.

LCCP Social Responsibility Codes 5.1.6(2) (for all licences other than lotteries) and 5.1.7(2) (for all lottery licences) states that for media not explicitly covered by the Codes, licensed gambling operators should have regard to the principles included in these Codes as if they were explicitly covered.

Ultimately, CAP says, the message for operators is straightforward: all consumer-facing social media activity must comply with the standards set out in the gambling section of the CAP Code. To read the statement in full, click here.