On the afternoon of Sunday 26 May 2013, then Prime Minister Julia Gillard and then Communications Minister Senator Stephen Conroy announced a ban on the promotion of live odds.1 This announcement marked the political summit of the criticism and concern relating to the broadcast of live odds, which commenced from the start of the 2013 NRL season and is best demonstrated by the adverse publicity received by TomWaterhouse.com's (TW) sponsorship of Channel 9's broadcast of the NRL.
Live odds refer to updates, during an event, of the odds for particular outcomes relating to that event. Unless the Interactive Gambling Act 2001 (Cth) (IGA) is amended to permit online live betting to Australian residents during a sports event, advertisements promoting live odds during a sports event are not much more than an opportunity to remind an attentive mainstream audience of the relevant operator's brand.2
As direct result of the Commonwealth Government's announcement, amendments were made to various codes which, as a collective, regulate broadcast advertising on a national level across both television and radio (collectively, the Industry Codes) to restrict the promotion of live odds during broadcasts of sport events.3 These amendments were effective 1 August 2013.
South Australia has gone one step further and has amended the South Australian code which applies to advertising activities of bookmakers (SA Advertising Code) to implement a total ban on the promotion of live odds on television in South Australia. These amendments were also effective 1 August 2013, however, this ban does not apply to advertising placed in a live sporting broadcast, to the extent that this advertising is in compliance with the applicable Industry Code. Press reports indicate that Western Australia is considering following SA's path.
The media coverage surrounding the broadcast of live odds is a clear example of the frequent and (usually adverse) publicity given to the heavy marketing spend of Australian betting operators. Most of this publicity results in a chorus calling for the tightening of restrictions on the marketing of wagering services (for example, by banning live odds).
On the other hand, Australian licensed wagering operators often raise concerns in relation to the complexity of, and the burdens placed by, the maze of restrictions with which they must comply to advertise their services. However, the importance of marketing to this industry cannot be understated.
First, there is little to no differentiation between products (odds are odds, after all) and very little price elasticity (very few punters would shift from their preferred bookmaker to another on the basis that they will be offered $1.25 and not $1.20 for the favourite). Secondly, the Australian market is both highly competitive, and, at least based on the steady stream of international betting brands that have invested in the Australian wagering market (irrespective of our small population size), highly lucrative.
Overview: How is Gambling Advertising Regulated?
Gambling operators (including wagering operators) seeking to legitimately advertise their brand and services are faced with a comprehensive list of restrictions, arising from multiple sources, including:
- gambling legislation at both the commonwealth (the IGA) and the state/territory level;
- a variety of regulatory bodies, for example:
- the licensing body;
- the regulatory body/ies responsible for the regulation of gambling in jurisdictions in which operators make their services available (for example, the South Australian Independent Gambling Authority, which is responsible for overseeing the SA Advertising Code); and
- in the case of advertisements relating to a particular betting market (for example, the NRL Grand Final), by the body that oversees that event (the NRL in this case);
- where applicable, legislation that regulates the medium by which the advertisement is capable of being viewed by members of the public. (For example, the Broadcasting Services Act 1992 (Cth) (BSA) establishes the licensing framework by which Australian television and radio stations are licensed and includes advertising restrictions which apply to these licensees); and
- self-regulation through industry codes, such as:
- codes which apply to a particular medium, such as the Industry Codes, one of which is the Commercial Television Industry Code of Practice (Free TV Code), which applies to all advertising broadcast through free to air television; and
- the Australian Association of National Advertisers' (AANA) Code of Ethics, which is described by the AANA as "this overarching code of Australian advertising industry self-regulation has the objective of ensuring all advertising is ethical, and prepared with a proper sense of obligation to consumers and fairness to competitors."
Commercial decisions are often made by these operators as they weigh up legal risks against the benefits derived from advertising. These decisions have given rise to a commonly held perception that betting operators are pushing the envelope when it comes to advertising.
Why Didn't You see this Much Advertising a Few Years
Ago? Because it was Illegal.
Most Australian licensed corporate bookmakers (for example, Sportsbet, Sportingbet, Unibet, bet365 and TomWaterhouse.com) are licensed in the Northern Territory. Prior to 2009, there were a number of prohibitions in NSW and Victoria that disallowed betting advertisements unless the operator was licensed in that jurisdiction.
These prohibitions were challenged successfully on constitutional grounds by Betfair (licensed in Tasmania), and Sportingbet (licensed in the Northern Territory) and were subsequently repealed. Accordingly, until 2009, corporate bookmakers licensed in the Northern Territory could only market their services in, and from, the Northern Territory.
On 15 May 2013, Greens Senator Richard Di Natale introduced into the Senate a bill to ban live odds (the Di Natale Bill).4 The Bill sought to amend the BSA so that an additional condition is imposed upon each radio and television licensee, which prevents them from broadcasting:
- an advertisement which contains information about odds;
- information about odds during (or 30 minutes before or after) the broadcast of a sports event or a broadcast that relates to a sports event; and
- any gambling advertisement before 9pm.
The Di Natale Bill placed the responsibility squarely on television licensees – not on the gambling operator advertising the live odds. Furthermore, the liability placed on these licensees is in the heaviest form – a breach of their license conditions.
Accordingly, the Di Natale Bill was met with strong opposition from the Australian commercial television and radio industries.
The Di Natale Bill was referred to the Joint Select Committee on Gambling Reform (JSCOGR), so that JSCOGR could consider the Bill as part of its wider inquiry into the advertising and promotion of gambling in sport. JSCOGR, in its report dated 7 June 2013, took the view that the Di Natale Bill should not be passed, on the basis that the applicable industry codes had been amended and that the effectiveness of the measures proposed by Senator Di Natale needed to be evaluated before being implemented through legislation.
The live-odds issue came to prominence due to a perception of excessive advertising of sports betting. Certainly, it has resulted in greater controls being implemented with a threat that those controls may be legislated nationally, if required.
Accordingly, care needs to be taken to ensure compliance with these controls and that appropriate precautions are taken to ensure that advertising of sports betting is not perceived as excessive and against the public interest.
The assistance of Jessica Azzi, Solicitor, of Addisons in the preparation of this article is noted and greatly appreciated.
2 Betting operators are currently only permitted to offer live betting on sports over the phone (ie a customer is required to call a traditional call centre to place bets on a live sports event).
3 For example, the Commercial Industry Code of Practice, which is overseen by Free TV Australia and the Subscription Narrowcast Television Code, which is overseen by ASTRA.
4 Broadcasting Services Amendment (Advertising for Sports Betting) Bill 2013.
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.