CAP clarifies guidance on social media 'appeal' to children in UK gambling ads

The UK’s Committee of Advertising Practice (CAP) has updated its guidance on protecting under-18s in gambling and lotteries advertising, clarifying how the "strong appeal" test should be applied.

The refreshed guidance published on 14 October adds a rule-of-thumb metric for social media followers and distinguishes "adult-centric" and "non-adult-centric" sports, so that advertisers can strengthen their compliance.

The existing position

The CAP Code states that marketing communications for gambling must not be of strong appeal to young persons, especially by reflecting or being associated with youth culture. Such marketing must not include a person or character who has a strong appeal to those aged under 18.

CAP's original guidance, initially published in April 2022, assessed advertising elements that could have strong appeal to children including sports, sports stars, characters, imagery and themes. Multiple factors are taken into account when determining whether a person or character has strong appeal to children. One of these factors is the person or character's social media following. While the original guidance touched on how the assessment of a social media following will be taken into account in respect of any decision as to whether the person or character strongly appeals to children, it did not give any definitive numbers or values to use as a benchmark, instead describing social media followings as "significant" or "generally high" and "small but notable".

This meant that gambling operators largely looked to Advertising Standards Authority (ASA) rulings to determine their approach on whether a person or character has strong appeal to children. High-profile decisions involving former professional footballer and current pundit, Gary Neville, and former professional cricketer and current pundit, Stuart Broad, while helpful, created some uncertainty;  the rulings found that 135,000 under-18 followers was a significant number to show inherent strong appeal, whereas 7,500 under-18 followers was a low absolute number not likely to be of strong appeal. Although other factors were taken into account in respect of these decisions, with the absence of further guidance, a grey area remained as to the particular number of under-18 followers which indicated strong appeal to children.

What's changed?

The updated guidance introduces a "rule of thumb" for social media followers. Now, a total of 100,000 followers from accounts registered to under-18s across all social media platforms is indicative of strong appeal and this applies even where the overall proportion of under-18s followers is low. 

However, this rule of thumb is not a definitive indicator of strong appeal. The guidance recognises that, in consideration of all other factors relevant to youth appeal, it is possible that a person with fewer than 100,000 followers can still have a strong appeal or a person with more than 100,000 followers may not have strong appeal. Marketers are reminded to exercise particular caution in the absence of UK-specific data. The 100,000 threshold is nevertheless a useful benchmark for marketers when they are deciding on featuring a person or character in an ad.

Marketers are expected to use all the data available to them to make a reasonable assessment of the under-18s engagement. It is not enough to only consider the data on the platform the ad will feature on. The guidance also places an expectation on marketers to be conscious of the broader social media landscape and their own role. For example, a viral moment may mean an advert has strong appeal and attempting to boost a person's popularity with content will require an explanation if challenged by the ASA.

In addition, marketers should be conscious that the data provided by social media platforms in relation to underage followers is generally not accurate. Some social media platforms do not provide this data at all and, in addition to his, users usually self-report their age when creating a social media account, so there is likely a significant number of users who claim to be over 18, but in fact are under 18.

Previously, sports such as darts, snooker and golf were designated a low risk in their appeal to under-18s as they were "clearly adult-oriented sports". At the other end, sports like cricket, tennis and rugby were deemed to be high-risk due to their significant national profile. These lists have been replaced with evidence-led assessment, likely reflecting the increase of youth engagement with sports such as darts. Under the new guidance, whether a sport is high or low risk will depend on whether it is "adult-centric" or "non-adult-centric", which will be determined on the evidence (or lack of evidence) of significant participation or viewership among under-18s.

Osborne Clarke comment

We would suggest that gambling operators and their marketing agencies take the following practical steps as a result of this updated guidance:

• Reassess current roster. Review the influencers and talent currently used in marketing communications and identify whether the introduction of the rule of thumb brings any within the scope of ASA enforcement. Under-18 UK follower counts of more than 100,000 should be treated as a red flag.
• Assess social media analytics. Review the reporting available from each social media platform and critically assess this to create a risk profile for each one.
• Train teams. Ensure that marketing teams are aware of this update and the further considerations involved in the creation of ads that feature persons or characters.
• Monitor trends. Track social media trends as, if a personality involved in an ad suddenly goes viral after that ad is launched, the ASA may expect that the ad is withdrawn promptly if this virality increases the likelihood of the personality or the promotional activity is of strong appeal to children.
• Build robust evidence. Collate and record evidence such as platform analytics and other data collected, and document wider contextual factors such as the sport category rationale to be able to defend decisions if challenged by the ASA. Do this prior to the publication of any associated promotional material.

Oliver Smithson, a trainee solicitor with Osborne Clarke, contributed to this Insight.