Unlike in the United Kingdom, online gambling activities are not permitted in the United States. The regulator has historically held any online gambling activity to be illegal, until now. On December 23, 2011 the US Department of Justice reversed its decade long position on the applicability of the US Wire Act to online gambling that does not involve sports betting. This may well clear the way for individual States to become more aggressive in legislatively enabling intra-State online gaming and could potentially allow the Federal Government to permit licensing and regulating of online gambling. This is not simply big news for the US. Gaming and gambling operators around the world may now be able to establish a foothold and ultimately a major presence in the US with Uncle Sam's online casinos. For more information, read the Client Alert prepared by lawyers in our New York Office.
The global legal gambling market was worth $335 billion in 2009, of which $25 billion came from online gambling. As a result of legislation dating from the early 1960s, UK gambling operators had been prevented from advertising their services, and thus prevented from getting a fair share of this substantial pie, until the Gambling Act 2005 (the Act) came into force in 2007. Gambling operators in the UK are now permitted to advertise relatively freely, subject to the provisions of the CAP and BCAP Codes and the gambling industry's own code (click here for our Ad Guide on the new law).
Recent ASA adjudications have shown that gambling advertisers are embracing the freedom granted under the Act, but are also trying to test its boundaries. Interestingly, significantly fewer complaints about broadcast gambling commercials have been upheld by the ASA than about non-broadcasting gambling ads. It appears that Clearcast has adapted to the requirements of the new rules very efficiently.
For example, two adjudications about television advertisements in November last year and in May this year (full adjudications here and here) acknowledged that the sensible presentation of the main characters (one an old woman and the other a "calm and measured" man) in the commercials prevented the commercials from being seen as socially irresponsible.
On the other hand, some non-broadcast advertisements, which do not require pre-clearance, have fallen foul of the laws. An e-mail advertisement for Betfair showed a photograph of a young professional poker player and champion with the following text "Online experience is measured in games, not years. Join the new breed. Annette Obrestad - Annette_15." The complainant challenged the advertisement on the basis that it encouraged children and young people to gamble, in breach of the provisions of the CAP Code. Furthermore, the ASA themselves challenged it on the basis that it breached the Code requirement that no person under 25 years old featured in a gambling advertisement.
The ASA, perhaps unsurprisingly, upheld both complaints, despite the fact that the advertisement had not been targeted at persons under 18, and Betfair had in place a dedicated team and technical measures to prevent under 18s from registering on their website. Indeed Betfair were forced to admit that their marketing team had been told not to use this character for UK targeted advertising, and they apologised for the fact that that this instruction had erroneously been ignored. The full adjudication is here.
It is worth remembering that not all gambling operators in other jurisdictions have the same freedoms as UK operators do under the Act. Since 1991, France has prohibited gambling advertisements from appearing in television or cinema. Online gambling is still illegal in the US, despite the fact that many Americans are still gambling via the internet regardless, as the figures at the beginning of this article demonstrate.
However, in the UK, gambling operators who show that they are serious in complying with the advertising codes, should have no problem in continuing to advertise.