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As reported in the April 2012 issue of this newsletter, the UK
Gambling Commission (the UK Commission) earlier
this year considered whether popular UK game shows including Deal
or No Deal and Red or Black gave rise to gambling law
ramifications.
The UK Commission's concern was that, through their
participation in game shows, contestants are gambling.
If this view were correct, the producers of game shows would
need to change the format of their respective shows (to ensure that
they did not constitute gambling) and/or acquire a gambling licence
in order to comply with the UK Gambling Act (the
Act).
Substantial commercial implications would result. Deal or No
Deal, for example, has a daily audience of 4 million viewers in its
current afternoon time slot.
In addition to the cost involved in obtaining a gambling
licence, the licence conditions are likely to require the show to
screen after 9pm. This would impact the audience (including its
composition) and size and, ultimately, advertising revenue.
Possible changes to the format to ensure that the show does not
constitute gambling may include, for example, in the case of Deal
or No Deal, ceasing to allow the main contestant to win
"money" as they progress throughout the game.
This would eliminate the possibility that the contestant is
providing consideration by staking the money they win to continue
to participate in the game.
Any change of this nature is likely to affect the appeal of the
game show to audiences, broadcasters and advertisers.
However, soon after announcing that it was planning to issue a
guidance note to assist game show producers in meeting their
obligations under the Act, the Commission indicated that it would
no longer be taking this approach. It is likely that this occurred
after discussions with concerned producers.
Despite this change, comments made by the Commission's
chairman, Philip Graf, in June indicate that the UK Commission
remains concerned. Rather, based on Mr Graf's comments, the UK
Commission will engage in discussions with producers to ensure that
the shows comply with gambling legislation - either through a carve
out in the existing legislation or by modifying the shows
themselves, for example, suggested above.
The Commission's willingness to consider a carve out, for
example, so that game shows would be exempt from the Act, is
significant for two reasons.
First, it would effectively introduce an exemption for trade
promotions into UK gambling legislation. This approach is similar
to that taken in Australia, where the producers of TV shows which
involve a game of chance either can apply for a trade promotion
permit, or meet other criteria (for example, they must not charge
contestants a fee for entry), to ensure that the show falls outside
the ambit of gambling legislation. UK game show producers would
benefit from the availability of an exemption of this nature,
whether it be in the form of a trade promotion exemption or as a
carve out for game shows specifically, as it would enable them to
design game shows in a manner that would avoid the risk of the
Commission raising similar concerns in the future.
Secondly, by considering a carve out, as opposed to, for
example, requiring producers to apply for a gambling licence, it
would appear that the Commission is adopting a more practical
approach in dealing with its concerns, and will work with producers
to address these concerns.
It is clear that the application of gambling laws to game shows
is an issue that will remain unclear and will need to be considered
on a country by country basis. Certainly, the UK consideration of
the issue will remain a topic of global interest, particularly
considering the popularity of game shows generally. This includes
Australia, where, for example, the view taken by regulators is that
the local version of Deal or No Deal is a game of skill and
therefore falls outside.
The assistance of Jessica Azzi, Solicitor, of Addisons in
the preparation of this article is noted and greatly
appreciated.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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