knowledge 8 January 2024 |

Gambling Regulation Bill 2022: Significant impacts for online advertising of gambling activities

For more information on the time restrictions for advertising gambling activities which the Bill proposes, see our briefing on the advertising watershed (here).

What does the Bill currently propose?

Section 138(1) of the Bill will prohibit persons from advertising, or causing another person to advertise a relevant gambling activity on an on-demand audio-visual media service (an “On-demand Service”); or by any other means of electronic communication to another person, unless the person receiving the advertising:

1. has subscribed to the On-demand Service or such electronic communication; and

2. has given explicit consent to receiving the advertisement from the first-mentioned person by means of that On-demand Service or by such electronic communication.

This means that advertising of relevant gambling activities will be prohibited unless a person has specifically subscribed to the On-demand Service or electronic communication and has given explicit consent to receive such advertising on that particular platform. For example, On-demand Services, social media websites and video-sharing platforms which allow users to access content without a subscription will be prohibited from showing gambling advertisements to those users, even where the users may explicitly consent to the advertising.

What platforms are affected?

An On-demand Service is defined by Section 137 of the Bill as a media service:

1. that transmits video and music over the internet so that a person may watch or listen to the video or music immediately rather than having to download it or having to watch or listen to it at a particular time;

2. to which access is restricted on a country-by-country basis; and

3. that is available in the State.

Based on these criteria, On-demand Services might include streaming and content services such as Netflix, Disney+, or Amazon Prime. This proposed restriction may be particularly relevant in light of proposals by a number of streaming services to introduce advertising to subscription plans in the next year, some of which have already taken effect (in certain regions).

Section 138(1) of the Bill also specifies that “any other means of electronic communication” includes communication via a video-sharing platform, a social media website, by telephone, text message or email. This is very wide and appears to be intended to encompass all electronic communication. However, it is unclear how the ‘subscription and explicit consent’ exception would operate in relation to some electronic communication, such as telephone or text message, where a subscription model may not be in place. It seems that in those instances Section 138(1) may introduce a total prohibition of gambling advertising.

Consequences of the prohibition

Curtailment of online advertising

Providers of On-demand Services, social media sites, video-sharing platforms etc. will have to ensure that those receiving gambling advertising are subscribed to the relevant service or electronic communication and have also explicitly consented to such advertising. For instance, obtaining explicit consent from each subscribed individual would require that that individual provides an express statement of consent to receiving gambling advertising via that particular service or platform. This is most likely to involve a check box consent that is presented to the individual, either via the relevant service or on a connected website. Further, as explicit consent is required for each On-demand Service or electronic communication medium which may display advertising, a blanket consent to receive gambling advertising across different platforms and services would not be sufficient.  As such, it may be unworkable for providers to introduce a separate advertising regime for Ireland which excludes gambling advertising in some instances but not others, in particular one that has such a high threshold for compliance.

This restriction is also likely to significantly limit the number of individuals who would be able to receive gambling advertising in Ireland and limit the value of this advertising revenue for On-demand Services and other platforms. The practical result may be that On-demand Services, video-sharing platforms, social media websites etc. will no longer facilitate advertising of relevant gambling activities to avoid the administrative burden complying with the exception under Section 138(1) would involve for relatively low return.  

What is also perhaps insightful in this regard is the note in the (Explanatory Memorandum) accompanying the Bill, which states that in relation to Section 138, “In summary, gambling advertising will be prohibited by default on these platforms” (being On-demand Services and other electronic communication platforms). This indicates that the intention of the legislation is to significantly curtail gambling advertising online. 

Criminal Offence

Section 138(2) of the Bill introduces a criminal offence for a contravention of the prohibition in Section 138(1). A person found guilty of an offence under Section 138(2) will be liable:

1. on summary conviction, to a class A fine or imprisonment for a term not exceeding 12 months, or both; or

2. on conviction on indictment, to a fine or imprisonment for a term not exceeding 5 years, or both.

Interestingly, Section 138(3) of the Bill provides that it shall be a defence for a defendant charged with this offence to show that they made all reasonable efforts to ensure compliance with Section 138(1).

Interaction with the Watershed

Under Section 141 of the Bill, advertising gambling activities on television, radio, or an On-demand Service between the hours of 5.30 am and 9.00pm will be prohibited, creating a watershed time between 9.00pm and 5.30am during which relevant gambling activities may be advertised. Section 141 does not include “any other means of electronic communication” within the watershed prohibition. Therefore, it remains to be seen whether advertising will be permitted before the watershed on the other mediums referenced in Section 138(1) but not listed in Section 141, such as on video-sharing platforms, social media websites, by telephone, text message or email.

Also contributed to by Siobhán Power