A new Code of Standards for Advertising, Promotional and Direct Marketing, launched by the Advertising Standards Authority for Ireland, will come into force in the New Year. Deirdre Kilroy, an associate solicitor with L K Shields, warns that the new code places an increased focus on new media advertising, strengthening existing regulation governing the distance selling of gambling.

Irish Law does not endorse gambling, whether online or in more traditional formats. The Gaming and Lotteries Acts, 1956-1986 restrict the ability of a person to enforce a contract dealing with a bet or a wager. The legislation does not clearly deal with business models currently in use, or with equipment such as fixed-odds betting terminals (FOBTs). Following the trends elsewhere, the number of Irish people placing bets on the internet continues to grow. The Irish gambling industry is expanding and diversifying. Foreign companies are viewing the country as a source of potential customers, and as a new base for parts of their business.

One of the difficulties for the Irish regulators and enforcement agencies is that it is tricky to effectively enforce the law in the online environment. This difficulty is of some concern to the Irish authorities. This issue of unregulated online betting as a source of lost exchequer revenue has been flagged by the Irish Revenue Commissioners. The recently formed Casino Committee has 'internet gambling' as a ground of reference upon which it must report.

While the online gambling itself is difficult to regulate, it is less difficult to regulate some of the methods through which online operators advertise their services. For this reason, anyone advertising to Irish consumers should make themselves aware of the new "Code of Standards for Advertising, Promotional and Direct Marketing" that will come into force on 1 January 2007. The Code was launched by the Advertising Standards Authority for Ireland (ASAI), and will affect its members' activities from that date.

Although an independent self-regulatory body, the ASAI's decisions and Code are accepted and followed by the advertising industry in Ireland. The new Code sees the ASAI expand its jurisdiction to deal with a wide range of marketing and promotion activities. The tone of the new Code is more prescriptive and legal.

A number of changes have been made to the previous Code. Emails and text transmissions are now expressly included within the scope of the Code alongside the more traditional advertising formats. Irish ecommerce data protection law already places onerous obligations on those using these advertising formats, and now there are additional considerations to take account of. Internet advertising had previously been addressed in the ASAI Code, but is the subject of increased focus in the new Code.

There is a greater emphasis on the way that new electronic media should be used for advertising and marketing. The sections of the Code dealing with 'distance selling marketing' have also been expanded upon to deal with the issues that the ASAI perceives in this area. Again, this serves to reinforce and strengthen existing regulation in terms of the laws governing the distance selling of gambling services.

In an important shift in emphasis, the Code changes from focusing on 'advertisements' to focusing on 'marketing communications'. A 'marketing communication' is very broadly defined. It is any form of communication produced directly by or on behalf of advertisers intended primarily to promote products, to influence the behaviour of and/or to inform those to whom it is addressed. The term includes advertising, as well as other marketing techniques such as promotions, sponsorships and direct marketing. The concept of the applicability of the Code being relevant to only paid-for commercial communication has been dropped in the new Code, although the emphasis remains on paid-for activities.

In an effort to increase its Code's relevance for the advertising sector, the ASAI has introduced a recommendation that parties include a new term into their contracts. The term should indicate that the provisions of the Code and any decisions, adjudications or rulings made by the Authority, will be adhered to. Implementing this recommendation would bring the force of law to what is a non-binding Code. My advice is that parties adopting this recommendation should do so with caution, and not as a matter of course.

It is now part of the Code that advertisers, agencies, media and promoters can obtain confidential copy advice from the ASAI. The ASAI will advise on whether a proposed marketing communication or sales promotion conforms to its Code. Certain disclaimers attach to this service, but putting on a formal setting what has been an informal practice should be helpful to advertisers.

The section of the ASAI Code dealing with claims has been extended and strengthened. New sections have been included dealing with cross-border claims, a structure allowing review of decisions, and greater emphasis has been placed on the ASAI's membership of the European Advertising Standards Alliance. It remains to be seen as to what scope this will give the ASAI to take cross-border action.

One of the new sanctions introduced by the Code is called 'Compulsory Copy Advice'. Under this sanction, the ASAI may require advertisers whose marketing communications 'persistently and/or gravely breach the Code' to have some or all of their proposed marketing communications subjected to scrutiny by the Authority, until the ASAI is satisfied that future communications are likely to comply with the Code. The Code seems to suggest that this sanction is more likely to be used if an advertiser seems to have 'deliberately flouted the Code with the intention of generating complaints, PR and subsequent notoriety'.

Although the ASAI is a self-regulatory body, its views are followed by the advertising industry in Ireland, as general rule. The publicity that an upheld complaint gains in the press, and the deference shown to the rulings by the media that carry advertisements, means that the ASAI rulings hold sway. Paddy Power has on more than one occasion promptly withdrawn advertisements where complaints to the ASAI were upheld. One such occasion involved a radio commercial featuring a grandmother teaching her grandson to play strip poker, with suggestive sound effects. A more infamous campaign, which was promptly withdrawn following an ASAI ruling, depicted a pastiche of the Last Supper. Jesus is placed at the centre of a long table with the twelve Apostles to each side of him. In the advertisement, Jesus is holding a stack of poker chips while the Apostles are playing cards and roulette. In this second case, the ASAI fast-tracked the complaints procedure, and the posters published as part of the campaign were taken down quite promptly.

While these Paddy Power rulings dealt with radio and poster campaigns, there are also a number of rulings against those advertising through their own websites, and through websites of a third party. Aer Lingus and Ryanair are high profile examples of companies that the ASAI has publicly found have failed to comply with its rules. Such findings have prompted public apologies and withdrawal of campaigns.

Whether the new Code will see increased ASAI rulings or activity remains to be seen. The new Code adds to the existing web of laws regulating consumer advertising in Ireland. Future developments in the area will include the publication of the Broadcasting Commission of Ireland's (BCI) General Advertising Code.

The BCI Code will have force of law, and the draft code that has been published expressly deals with betting and gambling. The draft BCI code proposes allowing commercial communications to promote the services offered by a betting establishment, including online betting services, once they do not include any content which might encourage a person to bet. A tricky line to walk for the radio and television service providers to which the BCI code will apply! The BCI Code and ASAI must also been seen against the backdrop of other consumer legislation in the area of advertising. The main legislation concerning advertisements in Ireland is the Consumer Information Act, 1978. This Act sets out, among other things, various rules that apply to descriptions of services. Misleading advertising is also forbidden under the European Communities (Misleading Advertising) Regulations, 1988, which were introduced because of an EU Directive, and there are other relevant laws.

As a general rule, in Ireland, consumer protection laws may not be contracted out of. The golden rule to take away from this article is to check that any advertisements aimed at Irish consumers, or published in Ireland, comply with Irish advertising laws. The sanctions if you fail to do so, on many occasions, include the commission of an offence.

For further information please contact Deirdre Kilroy.

December 2006.

This article was first published in the worldonlinegamblinglawreport,
Volume 5, Issue 12, December 2006.