Crackdown on Illegal Gambling Advertising in Australia

If you’re a live sports fan, it’s almost certain that you have come across a gambling advertisement (…or two). For a while now, gambling advertisements have been a common feature of sports broadcasts. Whilst the Australian Government is in the process of considering reforms to further tighten Australia’s gambling advertising laws and regulations following the conduct of its review into online gambling in 2022-2023, the Australian Communications and Media Authority (ACMA) is increasingly using the regulatory powers and tools at its disposal to crack down on illegal gambling. This article explores two recent enforcement actions undertaken by the ACMA in relation to illegal gambling advertising during live coverage of sports events in Australia.

Foxtel/Kayo Investigation (2024 AFL Match: Port Adelaide v Essendon)

The most recent ACMA enforcement action relates to a gambling advertisement that appeared during the live coverage of an AFL match between Port Adelaide and Essendon on 5 April 2024. The match was broadcast on Foxtel’s Fox Footy channel and its online streaming service, Kayo, and the advertisement in question involved a virtual banner containing the name, logo and tagline of a wagering company which was included at the base of the screen during the commentary segment of the halftime break of the match.

The complaint received by the ACMA was that the advertisement had not been accompanied by a responsible gambling message and was therefore in breach of the Online Content Service Provider Rules 2018 (Cth) (Online Rules) and the ASTRA Subscription Broadcast Television Code of Practice 2015 (Subscription TV Code of Practice). Under the Online Rules and the Subscription TV Code of Practice, a gambling advertisement which appears during the broadcast of a live sporting event must be: (a) socially responsible; and (b) accompanied by a responsible gambling message.

The key aspects of the ACMA’s investigation and findings are set out below.  

Which rules applied?

A threshold issue that the ACMA had to consider was whether the conduct should be considered under the Online Rules or the Subscription TV Code of Practice. More specifically, the ACMA had to consider whether the gambling advertising restrictions in the Online Rules or the Subscription TV Code of Practice applied to the advertisement.

The complainant had viewed the gambling advertisement during the live stream of the AFL match on Foxtel’s streaming service, Kayo, and the ACMA therefore initially considered the potential application of the gambling advertising restrictions under the Online Rules. Whilst the Online Rules apply generally to the providers of online content services (e.g. streaming services), there is an important exemption which relates to services that provide an identical, simultaneous stream to that which is transmitted on another broadcasting service (e.g. TV) – these are known as ‘exempt simulcast services’ under Schedule 8 to the Broadcasting Services Act 1992.

In this case, whilst the advertisement had been viewed by the complainant during the live stream of the AFL match on Kayo, Foxtel was able to successfully argue that the match that was streamed on Kayo was identical and simultaneous to the broadcast of the program on the Fox Footy channel and should therefore be considered to be an ‘exempt online simulcast service’ for the purposes of the Online Rules. The ACMA agreed with this submission and concluded that the gambling advertising restrictions that applied to the advertisement were those which applied to Foxtel’s transmission of the match on its Fox Footy channel under the Subscription TV Code of Practice (rather than the restrictions in the Online Rules). 

Was the virtual banner a ‘betting advertisement’ for the purposes of the Code of Practice?

The ACMA also had to consider whether the advertisement was in fact a ‘betting advertisement’ for the purposes of the Subscription TV Code of Practice. 

Under the Subscription TV Code of Practice, a ‘Betting Advertisement’ is broadly defined as:

“any writing, still or moving pictures, signs, symbols or other visual images or any audible message(s) (or any combination of those things) that comprises a distinct promotional reference to:

1. a gambling or betting service; or 
2. a gambling or betting organisation (including generic information about a gambling or betting organisation’s brand, business or services).” 

As noted above, the advertisement in question involved a virtual banner which contained the name, logo and tagline of a wagering company. This banner was included at the base of the screen while a commentator was talking to the camera from the match grounds at halftime during the AFL match. 

Foxtel argued that the banner was not a ‘betting advertisement’ for the purposes of the Code of Practice on the basis that it did not advertise sponsorship or promotional content relating to a gambling service. In support of this, Foxtel pointed to the fact that the advertisement did not, for example, encourage or direct persons to use a wagering service (or open a betting account), or contain links to the wagering company’s platform or service, or promote any specific product or promotion offered by the wagering company. 

However, the ACMA concluded that, whilst the advertisement did not contain an explicit call to action or reference to a specific product, the broadcast of the wagering company’s logo was intended to draw attention to, and promote, the company, and it was therefore a ‘Betting Advertisement’ for the purposes of the Subscription TV Code of Practice.

Was the advertisement accompanied by a responsible gambling message?

The advertisement included an “18+” display in a white circle on the far right-hand side of the virtual banner. Foxtel argued that this inclusion (along with the fact that there was no definition of the term ‘responsible gambling message’ in the Subscription TV Code of Practice) was sufficient for the advertisement to have been accompanied by a ‘responsible gambling message’.  

The ACMA accepted that the Subscription TV Code of Practice did not include a definition of a ‘responsible gambling message’, but drew on guidance from the relevant definition in the Online Rules and the consistent gambling messaging requirements under the National Consumer Protection Framework for Online Wagering. This resulted in the ACMA taking the view that a responsible gambling message must go further than simply indicating that gambling is only available to persons over the age of 18; it must emphasise the potential harm, even for adults, if gambling is not undertaken responsibly.

As a result, the ACMA concluded that the inclusion of the “18+” warning did not provide sufficient warning for adults about the risks of potential harm of gambling and, therefore, could not be considered to be a ‘responsible gambling message’ for the purposes of the Code. 

In response to the ACMA’s decision, Foxtel agreed to conduct further staff training on gambling advertising restrictions and agreed to report back to the ACMA on the steps being taken by it to ensure that gambling advertisements will, in future, contain sufficient responsible gambling messages. 

Channel Ten Investigation (2024 Australian Grand Prix)

The other recent ACMA enforcement action relates to a number of gambling advertisements that appeared on Channel Ten during the broadcast of Practice Round 1 of the Australian Grand Prix in March 2024. These advertisements were broadcast several times between 12.00pm and 1.00pm during the live coverage of the event. 

The complaint received by the ACMA related to an alleged breach of clause 3.1 of Appendix 3 to the Commercial Television Industry Code of Practice 2015 (Commercial TV Code of Practice) which states that, between 5:00am and 8:30pm, no gambling advertisements are permitted from 5 minutes before the scheduled start of play, during live play and until 5 minutes after the conclusion of live play. This is known as the ‘5-minute rule’. 

In this case, Network Ten effectively agreed from the outset of the ACMA’s investigation that it had breached the 5-minute rule under the Commercial TV Code of Practice by broadcasting these gambling advertisements at times that were prohibited under the Code of Practice. It stated that this breach of the Code was due to ‘regrettable human error’. 

As a result, Network Ten was required by the ACMA to conduct further staff training to avoid similar issues in the future and to provide written progress reports to the ACMA on its efforts in this regard. Network Ten also agreed to introduce quality controls and improve the planning, checks and balances that it has in place for ad scheduling arrangements on its network. 

Key Takeaways 

The recent enforcement actions taken by the ACMA show that the ACMA is closely scrutinising the timing and placement of gambling advertisements (both online and on television) and will actively respond to, and investigate complaints. It seems that an increasing number of complaints are being made due to community frustration with the amount of gambling advertising which currently appears during sports broadcasts. 

In light of this, broadcasters and online content service providers should ensure that they (and their staff) are clearly aware of the restrictions which apply. A ‘regrettable human error’ will not be reason enough to escape a breach finding from the ACMA. 

In addition, the outcome of the Foxtel investigation indicates that a responsible gambling message must communicate the potential harms and risks associated with gambling; a sign or symbol which indicates age restrictions (only) will not be sufficient.    

Finally, broadcasters and online content service providers should maintain a close watching brief on new laws on gambling advertising in Australia. The Australian Government has indicated that it is considering introducing a number of important reforms to address community concerns regarding the scope and scale of gambling advertising in Australia (particularly in a live sporting context). Whilst these reforms will not be introduced prior to the May 2025 election, it seems likely that a level of reform will be introduced at some point in the near future.