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