Last Updated: 18 Sep 2023
1. Introduction
Marketing and advertising should be undertaken in a socially responsible manner and must comply with consumer and advertising laws and codes under Irish law, including the Consumer Protection Act 2007 (as amended), the Consumer Rights Act 2022 and the Advertising Standards Authority for Ireland (ASAI) Code of Standards for Advertising and Marketing Communications in Ireland (ASAI Code).
2. Our Responsibilities
Overview
To comply with the relevant consumer and advertising laws and codes under Irish law, we ensure to operate an internal mechanism to prevent violations from occurring based on an understanding of the common patterns of infringements.
Also, we should pay attention to the following marketing-related sections of the ASAI Code and Consumer Protection Act 2007 (as amended).
Regulation | Code | URL |
ASAI Code |
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| 4. Misleading advertising | |
| 5. Promotional marketing practices | |
| 10. Gambling | |
Consumer Protection Act 2007 | 41. General prohibition on unfair commercial practices 43. Misleading commercial practices 53. Aggressive commercial practices 55. Prohibited commercial practices | |
Broadcasting Authority of Ireland (BAI) – General Communications Code | 20. Gambling |
Common infringement of advertising rule
Misleading
Advertisements can be misleading in many different forms and misleading advertisements represent the largest category of breaches by the ASAI.
All significant terms and conditions which are likely to affect a consumer’s understanding of a marketing promotion must be prominently displayed within the advertisement and positioned close to the headline offer on all relevant pages (or equivalent) for that promotion.
Significant terms and conditions for a marketing promotion should be presented in a clear, transparent, timely, intelligible and should not mislead by inaccuracy, ambiguity, exaggeration, omission or otherwise.
The terms and conditions of each marketing incentive must be made available for the full duration of the promotion.
To avoid misleading consumers, the following points should be clearly explained:
Advertisements that include a promotion and are significantly limited by time or space should include as much information about significant terms and conditions as practicable and should direct consumers clearly to an easily accessible alternative source where all terms and conditions of the promotion are prominently stated.
Participants should be able to retain this information or easily access it throughout the promotion.
Specific misleading issues include:
Substantiation (proof of the claims made during the advertisement, note ASAI can request documentary evidence to substantiate claims made by advertisers)
Qualification (may clarify the claims, but not contradict them – avoid unqualified superlative claims).
Price and "free" claims (only truly ‘free’ offers should be described as ‘free’, i.e. where a consumer only pays minimum unavoidable cost of responding to promotion or delivery).
Exaggeration (the capability/performance or benefits of the product/service shouldn’t be exaggerated so as to mislead consumers. Chances of winning or prizes shouldn’t be exaggerated.)
Comparisons with identifiable competitors, price comparisons or other forms of comparisons (should be fair and not misleading. Basis of selection should be clear and shouldn’t be selected in an unfair manner to present an artificial advantage).
Advertisements must not claim that product/service is able to facilitate winning in gambling.
Gambling advertisements to children
When advertising gambling products, one of the main issues we should be aware of is advertising rules concerning children. In accordance with the ASAI Code, gambling advertisements must not:
Harm or exploit the susceptibilities, aspirations, credulity, inexperience or lack of knowledge of children;
Be likely to be of particular appeal to children, especially by reflecting or being associated with youth culture;
Make direct use of signs, symbols, drawings, fictitious characters or real people of primary or particular appeal to children;
Depict adolescent, juvenile or loutish behaviour;
Contain endorsements by recognisable figures who would be regarded as heroes or heroines of the young;
Feature children, except in an incidental manner;
Feature anyone who is, or seems to be, under 25 (18-24) years old, unless those individuals feature only to illustrate specific betting selections or options where that individual is:
the subject of the bet offered,
is in a team that is the subject of the bet offered, or
is part of an event which is the subject of a bet offered.
The image or other depiction used must show them in the context of the bet and not in any gambling role.
Be directed at those aged below 18 years through the selection of media or context in which they appear, or be placed in or through media, or parts of media, that are specifically intended for children
Be displayed within 100 metres of a school entrance
Induce a child to regard gambling as a natural element of his/her leisure time/activities
The Broadcasting Authority of Ireland Children’s Commercial Communications Code prohibits broadcast advertisements/ commercial communications (ex. TV or radio advertisements) that would be of particular interest to children from containing reference to betting or gaming services or products.
Irresponsible advertisements
The ASAI Code provides general rules regarding advertising, including that advertisements should be:
Legal, decent, honest and truthful;
Prepared with a sense of responsibility to consumers and to society
Further to the rules regarding gambling advertisements to children (as set out above), the ASAI Code contains additional gambling specific rules including that:
All gambling advertisements should contain a message encouraging responsible gambling and directing people to a source of information about gambling and gambling responsibly;
All claims regarding winnings, chances, profitability etc must be factual and capable of substantiation and should not be exaggerated;
Advertisements should not imply that skills can influence the outcome unless this is factually correct; and
Advertisements of events etc that can only be accessed by entering a gambling premises should clearly state this condition.
Gambling advertisements should not
portray, condone or encourage socially irresponsible gambling behaviour or behaviour that could lead to financial, social or emotional harm;
suggest that gambling can provide an escape from personal, professional or educational problems;
suggest that gambling may solve financial or personal issues;
portray gambling as indispensable;
suggest that gambling can enhance personal qualities
suggest peer pressure to gamble or disparage abstention from gambling;
link gambling to seduction, sexual success or enhanced attractiveness.
portray gambling in a context of toughness or link it to resilience or recklessness;
suggest gambling is a rite of passage;
suggest that solitary gambling is preferable to social gambling; or
state or imply a promise of winning or portray unrealistic outcomes
The Broadcasting Authority of Ireland has published a ‘General Commercial Communications’ Code (BAI GCC Code) which applies to broadcast advertisements/ commercial communications. The BAI GCC code prohibits:
Advertisements that contain a direct encouragement to gamble, including information detailing special offers or free bets as prizes in competitions, discounts, inducements to visit a gambling establishment or other promotional offers intend to encourage gambling;
Advertisements that encourage socially irresponsible behaviour or behaviour that could lead to financial, social, psychological or emotional harm;
Advertisements that suggest gambling is a solution to personal, professional or financial problems;
Advertisements that suggest gambling can enhance personal qualities, or contribute towards attractiveness or social success;
Advertisements that feature children gambling; or
Advertisements directed at children or shown around children’s programmes.
Operation
General
It is our responsibility that the rules and conditions of the gambling facilities we provide are available and understood and that the terms offered are fair to all and that they are in compliance with the Consumer Protection Act 2007 (as amended), the Consumer Rights
Act 2022, the ASAI Code and the BAI GCC Code (if applicable).
We understand that all gambling operators have a duty to ensure that gambling is conducted in a fair and open way.
We must ensure that our product has an easily accessible hyperlink to our Terms & Conditions and straightforward FAQs.
Our Terms & Conditions are made in plain and intelligible language to minimise the risk that our customers will misunderstand their terms and effect.
We regularly review our terms and conditions to ensure that they remain fair.
We must ensure that the terms on which gambling is offered, and any customer notices relating to gambling activity and the contractual terms are not unfair within the meaning of the Consumer Rights Act 2022.
We must comply with those fairness terms.
The contractual terms on which gambling is offered and any customer notices relating to gambling activity must be transparent within the meaning of the Consumer Rights Act 2022.
Under the Consumer Rights Act 2022 a term is transparent if:
The term is expressed in concise, plain and intelligible language;
A written term is legible and presented clearly;
A term is made available to the consumer in a manner that gives the consumer a reasonable opportunity to become acquainted with the term before the conclusion of the contract (whether or not the consumer availed of this opportunity);
In the case of a novel or onerous term, the term has specifically been brought to the attention of the consumer in such a way that the average consumer would be aware of the term;
Costs or financial consequences deriving from the term would be comprehensible to the average consumer; and
The term complies with other requirements that may be prescribed.
The contractual terms on which gambling is offered must be made available to customers in an easily accessible way, in a legible manner and presented clearly.
If we make any changes to customer contract terms, we must notify customer of any such changes in accordance with the terms and service and in a manner that is consistent with our obligations under the Consumer Rights Act 2022, including the unfair terms provisions.
We must ensure that we do not commit any unfair commercial practices, misleading commercial practices, aggressive commercial practices or prohibited commercial practices within the meaning of the Consumer Protection Act 2007 (as amended), at any stage of their interactions with customers.
We must be able to provide evidence to the Competition and Consumer Protection Commission (CCPC), if required, showing how we satisfied ourselves that the terms are not unfair.
We must be able to provide documentary evidence to the CCPC or the ASAI, as the case may be, to substantiate claims made in advertisements.
We ensure all Significant Conditions are provided:
to customers in a clear, timely, intelligible, unambiguous, transparent, non-misleading and prominent manner within the advert and with the headline offer on all relevant landing pages (or equivalent) for that Promotion within the advert and with the headline offer on any other advertising on any medium for that Promotion.
If the advert is so small that it is not possible to do so, then as much as the significant information as practicable should be included in the advert and consumers should be directed to an easily accessible alternative source no more than one click away from the advert where all the terms and conditions are prominently stated in full.
The right to vary a promotion
We will not use, include, enforce, or seek to rely on any term in a customer contract or notice which has the object or effect of:
permitting us to unilaterally vary or discontinue a Promotion, or any part of it, in respect of a customer who has opted into the Promotion, made a deposit in expectation of receipt of a Bonus, and/or commenced play in relation to the Promotion prior to the date of the communication of the variation, other than where there is a valid reason that has been set out in the terms and conditions for example it is necessary to prevent fraud or other similar unlawful behaviour
reserving absolute discretion to us to determine either:
i. its liability to a customer
ii. a customer’s legal rights under the terms of a Promotion.
What we should do
We must not have any terms which allow us to vary or stop a promotion once a customer has signed up.
However, occasionally there may be a legitimate need to amend the terms of the promotion before a customer has signed up to it, for example, to manage/prevent fraud and other unlawful behaviour. This must be a valid reason that is provide for in the relevant terms and conditions.
What not to do
We must only amend the terms of the promotion before a customer has signed up for it. Terms must not be changed after a customer has opted to take part.
Marketing & advertising
We ourselves carefully control all marketing content and advertising content that we provide to ensure that it is compliant with Irish law, including the Consumer Protection Act 2007 (as amended), the Consumer Rights Act 2022, the ASAI Code and the BAI Code (if applicable), that applies to the form and media in which we advertise our gambling facilities and/or services and that it follows all relevant industry codes of practice on advertising.
We will not provide any products or services (including advertisements or SNS posts) that appeal to children or young people.
We will check carefully to ensure that we and any third parties engaged by us at all times remain compliant with this standard.
All marketing of gambling products and services must be undertaken in a socially responsible manner and reviewed by legal advisors as necessary.
All gambling advertisements should contain a message encouraging responsible gambling and directing people to a source of information about gambling and gambling responsibly.
In particular, we must comply with the Consumer Protection Act 2007 (as amended), the Consumer Rights Act 2022, the ASAI Code and the BAI GCC Code (if applicable).
For media not explicitly covered, we should have regard to the principles included in these codes of practice as if they were explicitly covered.
The restriction on allowing people who are, or seem to be, under 25 years old (ie: those in the 18-24 age bracket) to appear in marketing communications need not be applied provided they are accompanied by an adult and are socialising responsibly in the following communications:
(i) marketing communications for family entertainment centres, travelling fairs, horse racecourses and dog race tracks and
(ii) marketing communications for non-gambling leisure facilities that incidentally refer to separate gambling facilities, for example, as part of a list of facilities on a cruise ship.
We must ensure that their marketing communications, advertisement, and invitations to purchase do not amount to or involve misleading actions or misleading omissions.
We must ensure that all significant conditions which apply to marketing incentives are provided transparently and prominently to customers.
We must present the significant conditions at the point of sale for any promotion, and on any advertising in any medium for that marketing incentive except where, in relation to the latter, limitations of space make this impossible.
However, advertisements that are significantly limited by time or space should include as much information about significant terms and conditions as practicable and should direct consumers clearly to an easily accessible alternative source not more than one click away where all terms and conditions are prominently stated in full.
The terms and conditions of each marketing incentive must be made available for the full duration of the promotion.
Unless expressly permitted by law customers must not be contacted with direct electronic marketing without their informed and specific consent.
Whenever a customer is contacted the customer must be provided with an opportunity to withdraw consent.
If consent is withdrawn we must ensure the customer is not contacted with electronic marketing thereafter unless the customer consents again.
We must be able to provide evidence which establishes that consent.
How to prevent infringements
Summary
The following major steps are required.
Learn newest practices
Update compliance checklist
Create a draft and review
For the step 1 and 2, please see our Staff Training Policy to understand how to operate them.
Review
It is mandatory that after creating a draft of any advertisement key personnel or a supervisor should check them with a compliance checklist.
After that, we need to talk to an external advisor (consultant) to see whether there are any problems or not.
We will keep a record of all of the decisions made to reflect on them later.
The specific workflow is as follows.
