Ofcom – Written evidence (GAM0106)

Background

• Under the Communications Act 2003 (“the Act”), Ofcom is the statutory regulator with overall responsibility for the regulation of all advertising, including gambling advertising, on TV, radio and on-demand programme services (“ODPS”).

• Ofcom has entered into co-regulatory arrangements with the Broadcast Committee of Advertising Practice (“BCAP”) and the Advertising Standards Authority (“ASA”) who regulate gambling advertising on a day to day basis. We act as a statutory backstop for these self-regulatory bodies.

• Ofcom currently has no regulatory responsibility for online advertising other than on ODPS. The Committee of Advertising Practice (“CAP”) and the ASA regulate online advertising, as well as advertising in all other media, on a self-regulatory basis.

• However, the UK Government has consulted[1] on its intention to appoint Ofcom as the National Regulatory Authority with responsibility for video-sharing platforms (including a role regulating advertising on these services), as part of the transposition of the revised Audio-Visual Media Services Directive by 20 September 2020. We are waiting for further announcements from the Government.

Broadcast advertising

• Ofcom has contracted out the day-to-day regulation of broadcast advertising (i.e. TV and radio) to BCAP and the ASA. Broadly, BCAP is the code-setting body, and the ASA enforces the rules. The details of the arrangements are set out in agreements between the parties[2].

• Broadcast advertising is subject to the BCAP Code[3], which is owned by BCAP, but ultimately approved by Ofcom. The BCAP Code contains specific rules relating to gambling advertising. These include content-based restrictions (e.g. prohibiting gambling adverts from featuring in a significant role anyone who is, or seems to be, under 25) and scheduling-based restrictions (e.g. prohibiting gambling adverts from appearing in or adjacent to programmes commissioned for, principally directed at or likely to appeal particularly to audiences below the age of 18).

• The ASA enforces the rules in the BCAP Code. However, ultimate responsibility for the regulation of broadcast media (including the power to impose statutory sanctions, if necessary) remains with Ofcom. The ASA’s enforcement activity focuses on advertisers, but any statutory sanctions would be imposed on broadcasters licensed by Ofcom who transmitted that advertising. To date, the ASA has not referred any breaches of the rules relating to gambling advertising to Ofcom for consideration of the imposition of a statutory sanction.

• Ofcom directly enforces the rules in the BCAP Code covering ‘participation TV’ (i.e. long-form teleshopping content, including transactional gambling channels). We also enforce rules in Ofcom’s Broadcasting Code[4] which apply the provisions of the BCAP Code to programme sponsorship by gambling products, and prohibit the product placement of gambling products in programmes produced under UK jurisdiction. To date, no breaches of these rules have been sufficiently serious to warrant the imposition of a statutory sanction.

ODPS

• Advertising on ODPS (i.e. catch-up and other TV-like services) is subject to rules derived directly from the Act, which are contained in an appendix to the non-broadcast CAP Code[5] and enforced by the ASA. These rules do not include any specific provisions relating to gambling advertising. Separately, the ASA applies all other rules in its CAP Code to ODPS. These rules, which include specific provisions relating to gambling advertising, are written and enforced wholly independently of Ofcom, on a self-regulatory basis.

Other relationships and initiatives

• In the past, Ofcom has published research on gambling advertising[6]. More recently, the ASA has developed its own programme for monitoring gambling advertising (among other forms of advertising) on an ongoing basis[7].

• In addition to our formal co-regulatory relationships with BCAP and the ASA, Ofcom also regularly engages with other organisations with an interest in gambling advertising, such as the UK Government, the Gambling Commission and the Industry Group for Responsible Gambling (“IGRG”).

• The IGRG’s Gambling Industry Code for Socially Responsible Advertising[8] – which includes a 9pm watershed restriction on gambling advertising (with exemptions), and a ‘whistle-to-whistle’ ban on such advertising during televised sporting events – is a voluntary code drawn up by gambling operators. Ofcom has no role in developing or enforcing it.

12 January 2020