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Final updated guidelines on advertising by wagering operators in NSW

From Monday 2 July 2018, the NSW prohibition on offering any inducement to participate in any gambling activity, including an inducement to open a betting account or to bet more frequently, will be strengthened to also prohibit any inducement offered with a disclaimer.

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At the same time, penalties for offences will be significantly increased and directors and other corporate officers of a betting service provider may be held liable for any breaches of the gambling advertising restrictions.

PROHIBITION ON PUBLISHING OR COMMUNICATING GAMBLING INDUCEMENTS

Under section 33H of the Act, in NSW it is an offence to publish or communicate any prohibited gambling advertisement, including an inducement to gamble.

An inducement to gamble includes any inducement to participate, or to participate frequently, in any gambling activity (including an inducement to open a betting account).

WHAT DOES ‘PUBLISHING’ AND ‘COMMUNICATING’ MEAN?

The Act specifies that material is ‘published’ if it is disseminated or accessible to the public or a section of the public.  L&GNSW will consider that material has been published if it is accessible to the ‘world at large’ and capable of being accessed by people in NSW.

In assessing what constitutes ‘world at large’ for the purposes of digital advertising, including internet and email, L&GNSW will have regard to section 33G(2) of the Act.

Where an advertisement facilitates the dissemination of information to a person who does not hold a betting

account with the betting service provider, L&GNSW will consider it to be a publication to the ‘world at large’.

Gambling advertising communicated directly to a person who holds an account with the betting service provider will not be considered by L&GNSW to have been published or communicated under the Act, because only betting account holders will receive the offer.

PRINT

In considering whether printed material is published or communicated for the purposes of the Act, L&GNSW will consider material to be published or communicated where:

  • prohibited gambling advertising is printed in NSW, for example a Sydney-based newspaper advertisement that includes an inducement
  • prohibited gambling advertising printed in another State or Territory but intended for significant distribution in NSW, for example a sporting magazine printed in Victoria but routinely circulated within

L&GNSW will not consider that printed materials have been published or communicated for the purposes of the Act where the prohibited gambling advertisement has been inadvertently published or communicated in NSW.

For example, Betting Service Provider A publishes a full page ad offering an inducement in a newspaper with primarily Queensland circulation.  Where the newspaper is available in NSW, but it is clear that the publication

is incidental to its primary circulation, L&GNSW will not consider the material breaches the publishing requirement under the Act.

In determining whether publication is incidental, L&GNSW will have regard to the following:

  • is the publication or communication only intended for an audience other than NSW?
  • is the publication or communication primarily or substantially intended for an audience other than NSW?

Where material has been published or communicated in NSW and the publication or communication in NSW is not inadvertent, L&GNSW will consider that the material has been published or communicated for the purposes of the Act.

Physical advertising captured in a still photograph taken outside NSW, for example a billboard at a sporting event that is communicated or published in print in NSW will in most cases be considered inadvertent by L&GNSW.

DIGITAL MEDIA

Advertising on digital media provides betting service providers the opportunity to engage with a broad audience that is often not accessed through television or print.  Digital media includes banner advertising, advertising on webpages, mobile display, search engine results, email, SMS and in apps.  Any advertising through digital media must comply with all requirements under the Act.

In assessing whether a betting service provider has published or communicated prohibited gambling advertising on digital media, L&GNSW will have regard to the intended audience and whether the betting service provider has taken reasonable steps to prevent the prohibited advertisement from being published or communicated in NSW. This will include, but may not be limited to:

  • is the publication or communication primarily or substantially intended for an audience other than NSW?
  • is the digital media on which the publication or communication is made wholly or substantially intended for an audience other than NSW?
  • has the betting service provider caused any prohibited advertising to be geo-blocked for NSW?

These restrictions also apply to any advertising on a betting service provider’s website unless it is behind a membership wall.

L&GNSW will not consider that an advertisement has been published online where:

  • the betting service provider has caused all prohibited gambling advertisements to be geo-blocked,
  • the geo-blocking provider has taken reasonable steps to ensure the geo-blocking function is working, and
  • a person in NSW has used a virtual private network (VPN) to mask their location to access the online

WHAT IS AN INDUCEMENT?

The Act does not provide a definition for ‘inducement’. These guidelines do not seek to limit the broad wording included in the Act.

For the purpose of these guidelines, L&GNSW considers that an inducement includes any offer that is capable of persuading or encouraging a person to participate, or to participate frequently, in any gambling activity, including any encouragement to open a betting account.

In considering whether an offer constitutes an inducement for the purposes of the Act, L&GNSW will have regard to the following:

  • does the advertisement offer a reward or benefit which might persuade or encourage people to open a betting account or to switch from a competitor betting service provider?
  • does the advertisement offer a reward or benefit which might persuade or encourage people to engage in gambling behaviour?
  • does the advertisement offer a reward or benefit which might persuade or encourage people to engage in gambling behaviour in a certain way, for example online or on a device, or at certain times?
  • does the advertisement offer a reward or benefit which might persuade or encourage people to continue gambling behaviour?
  • does the advertisement offer a reward or benefit which might persuade or encourage people to intensify their gambling behaviour?
  • is the advertisement offering one or more incentives which might persuade or encourage people to bet that are additional to what is normally received as part of the core wagering product?

Section 33H of the Act prohibits any inducement being offered to a person in NSW, including an inducement that includes a disclaimer that the offer is not available to NSW residents. To be clear, the use of a disclaimer that an offer is not available to NSW residents will not stop an advertisement being considered a prohibited gambling advertisement.

For example, it is prohibited for Betting Service Provider C to publish online “Deposit $50 and receive

$120 PLUS a bonus $200 in bets if team/horse wins. New customers only. T&Cs apply. Excludes NSW, WA, SA and VIC”

The advertising of a rewards program that:

  • does not require a person to participate, or to participate frequently in any gambling activity,
  • does not require a person to open a betting account, and
  • does not provide any voucher, credit or account for betting purposes as part of the rewards program,

will not attract adverse attention from L&GNSW.

The offering of an inducement to gamble to a rewards program member who does not have a betting account with the betting service provider will be considered by L&GNSW to be in breach of the legislation.

ADVERTISING THAT WILL OFFEND

While L&GNSW takes a broad approach to what could be considered an inducement, consistent with the Act, L&GNSW will consider the following kinds of offer to be a prohibited offer when made to the ‘world at large’ (irrespective of whether they are accompanied by a disclaimer).

This is not an exhaustive list of offers that may be a prohibited gambling advertisement. Other offers may constitute an inducement. This will be informed by the criteria detailed above.

  • Offers of free or bonus bets e.g. “New customer sign-up bonus – deposit $50 and bet with $200”
  • First deposit bonus e.g. “Join now – get up to $100 bonus bet with your first bet”
  • Offers of refunds (whether as a bonus bet or cash) e.g. “Get a refund on your ixed odds win bet if your horse runs 2nd or 3rd”, “If your team leads at half time and loses, we’ll refund half your bet”
  • Offering an inducement through a third party e.g. a website publishes a bonus bet offer to members of the website that are not members of the betting service provider
  • Offering an inducement through a third party on social media e.g. a comment on a post on Facebook that communicates an offer for the licensed wagering operator “Join now and get $500 free – New customers receive a deposit match up to $500”
  • Refer a friend and your friend scores a bonus e.g. “Welcome bonus – each friend receives $300 bonus”
  • First bet refunds, including frst bets on particular races/sports e.g. “First bet refund on tonight’s dogs”
  • Reward points for bets placed or for opening an account e.g. “5,000 bonus rewards points – redeem as a $100 bonus bet”
  • Bonus or special odds for a limited period or bet amount e.g. “Super bonus – win 25% more on every race this Saturday at Randwick”, “Super boost your odds on races every Saturday from 11am to 2pm”
  • Join now and receive free bonus bet plus e.g. “Deposit $50 and receive $120 PLUS a bonus $200 in bets if team/horse wins. New customers only. T&Cs apply. Excludes NSW, WA, SA and VIC”
  • The advertising of ‘cash out’ features or similar e.g. “Have a break and cash out now”.

ADVERTISING THAT WILL NOT OFFEND

L&GNSW will not consider the following kinds of offers prohibited under the Act:

  • Advertising of a base service or generic corporate branding e.g. “Bet with Lucky Betting Club today”
  • Current odds being offered, including best price e.g. “Best Odds on State of Origin”
  • Live streaming of sports or racing events e.g. “Watch live sport here right now”

DEFENCE AGAINST PROSECUTION FOR PUBLISHERS

A person will not be guilty of an offence for publishing or communicating a prohibited gambling advertisement if (under section 33H(6) of the Act):

  • the gambling advertisement was in the form provided or was approved by or on behalf of the betting service provider, and
  • the person has not been notified by the Minister or the Minister’s delegate that the publication or communication may include a prohibited gambling advertisement.

To be afforded this protection from prosecution, a publisher or broadcaster will need to abide by any direction by the Minister or the Minister’s delegate about the possible legality of the publication or communication of a gambling advertisement.

L&GNSW will consider that a notification that a publication or communication may be in breach of the Act will apply to an entire campaign where the prohibited gambling advertisement is in the same form throughout the campaign.

 

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