The Advertising Standards Authority (ASA) recently announced that it has overturned its original ruling published on 13 March 2019 relating to a Sky Bet TV ad promoting their ‘Request a Bet’ service.

As reported by Carlton Daniel in this blog and in Law360, the ASA had previously found that the advertisement contravened the advertiser’s duty to be socially responsible (outlined in Section 16 of the CAP Code and Section 17 of the BCAP Code), when Sky Sports presenter Jeff Stelling told viewers to “spark your sports brain” and asked, “how big is your sports noggin?” The ad only received two complaints but the regulator considered that the ad inflated the extent of a gambler’s control over the outcome of a wager and erroneously implied that if one generally has good knowledge of sports, they are likely to be a successful gambler. Both elements in turn could potentially generate irresponsible gambling practices.

Sky Bet appealed to the ASA’s independent reviewer, Sir Hayden Phillips, who referred the matter to the ASA Council and recommended that the ruling be reversed. In agreement with Sir Hayden’s perspective, the ASA Council’s operative factors in the reversal centred around:

  • the context of the language when interpreted with the specific product being promoted; and
  • the fact that the ad also reaffirmed the unpredictability of sports betting when making the promotion.

Taking each of these factors in turn, the ‘Request a Bet’ product allows consumers to build their own betting slip by laying wagers on variables during a football match including the number of corners, red cards and goals. In the context of individuals using their knowledge of the football market to build a bespoke bet, the original ban seemed an affront to common sense. The ad did not make any reference to ‘success’, nor did it link being knowledgeable with being a better gambler. This line of reasoning was accepted by the ASA Council with the new ruling reading, “The ad focused on the features of the particular betting service being promoted and we did not consider that it irresponsibly exaggerated the role which sports knowledge played in achieving betting success.”

With reference to the second factor, the original ruling seemingly ignored the line in the ad which stated, “in sport, anything does happen”. Sky Bet argued that the statement demonstrated that when gambling, outcomes are inherently uncertain and no amount of sports knowledge can guarantee results. Again, this reasoning was accepted by the ASA Council, with the new ruling stating, “the phrase ‘in sport anything does happen’ explicitly recognised the uncertain nature of sporting outcomes. We therefore concluded that the ad was not socially irresponsible and did not breach the code.”

The feat in overturning the decision should not be downplayed, with such incidences being extremely scarce. As detailed in the Independent Reviewer’s Report for 2018 (pg.28 – ASA and CAP Annual Report 2018), last year the Independent Reviewer entertained 56 appeals, rejecting 42 and referring only 14 to the ASA Council. Of those 14 referrals, only two resulted in an outright reversal of the original ruling.

Whilst the ASA’s U-turn may be somewhat surprising, especially with the backdrop of its crackdown on reckless gambling advertising, many consider it to be the correct decision. It will be interesting to see whether Sky Bet reinstates the ad with the intention of recovering any lost revenue from its initial production.

Unfortunately, compensation due to incorrect ASA decisions is not generally available, even if the regulator is later forced to amend a decision. Sky Bet may well have suffered loss e.g. been unable to use booked media space when the ad was initially banned, for example.

For advice on any aspect of advertising, please contact Carlton Daniel.