Examination of Witnesses (Questions 1560
- 1579)
TUESDAY 24 FEBRUARY 2004
MR ANDREW
BROWN, MR
JIM ROTHWELL,
MR CHRISTOPHER
GRAHAM AND
MR ROGER
WISBEY
Q1560 Mr Page: That means that somebody
has got to complain in some capacity or other to the Commission.
What you are obliquely saying is for that the responsibility should
come back on the Gambling Commission?
Mr Brown: Yes, I think that is
right.
Q1561 Mr Meale: Could I go back to
the answer you gave to Richard Page. He mentioned that there is
a difference between premises and web sites. A condition of the
licence of a bookmaker, for instance, is that they should have
terms and conditions pinned on their wall somewhere in their reception.
Why is that not the case on the web site? Why it is there is not
a page of terms and conditions? Why are you not enforcing that?
Mr Graham: It is not for us to
enforce that because our writ does not extend to corporate web
sites; it is just not what we do. If we tried to do it we would
not get anywhere. We have got nobody to play with, if you like.
You have to have an intermediary. The system works as is it does
because of the interplay of interests between advertisers agencies
and the media. If something is being posted on the internet from
another jurisdiction then there is not a lot that we can do about
that and we are determined not to claim to regulate what we cannot
regulate. So it may well be the Gambling Commission will want
to set down rules for the way licensed services can conduct themselves
on the Internet, but that is absolutely beyond what we can do
or have any opinion on. What we can do is to regulate the advertising
in the non-broadcast media that we can effectively control, and
I think we do a pretty good job of that.
Chairman: Lord Brooke?
Q1562 Lord Brooke of Sutton Mandeville:
I do not know whether Mr Wisbey wanted to say anything.
Mr Wisbey: If I could just elaborate
on something Andrew said earlier on. The Gambling Commission would
issue the licence and the Gambling Commission could presumably
monitor what goes on in the retail premises and on the web site
and use the information gleaned from that to decide whether to
reissue the licence or revoke it.
Q1563 Jeff Ennis: You say they should
do that on the licence but not monitor and use it in anything
to do with advertising?
Mr Wisbey: Yes.
Q1564 Chairman: This presumably is
part of your point, Mr Graham, that in effect in the end the Gambling
Commission has the backstop power?
Mr Graham: Yes.
Q1565 Chairman: So the Gambling Commission
has the backstop power both in terms of the regulation of the
adverts but also the regulation of the premises and also any web
site referring to the premises?
Mr Graham: Because of the licence
arrangements. The simple point, Chairman, we are trying to make
is do not put under statutory control something which is currently
effectively regulated by the self-regulatory system, and we are
confident can go on being regulated effectively by the self-regulatory
system. That does not mean to say that we are able to sort out
all the problems of licensing and gambling. That is not our point
at all. We are asking to be left to get on with what we can do
effectively because from bitter experience we learn that very
often statutory regulation is less effective and just because
you have passed a law does not mean the sun is going to shine,
particularly if you cannot devote the resources to implement it.
Here you have got an effective system, leave us to do our thing;
we can deliver a good result for you.
Q1566 Chairman: For the benefit of
the Committee and the witnesses, a little note has appeared for
me confirming that Clause 94 permits the Gambling Commission to
review the operation of any licence, which we knew but it is useful
to have the reminder, which is really your point, Mr Brown, that
that power gives the Commission a wide range of options in respect
of any complaint which you, Mr Graham, in your organisation may
adjudicate upon but which if the operator refuses to comply then
the Commission can do something about it through the licence.
Mr Brown: Yes, there is a real
stick in the cupboard and presumably it can be used in a variety
of ways—the licence can be permanently withdrawn or withdrawn
for a limited period of time. Presumably within that sanction
there are a great deal of other sanctions.
Chairman: Fine. Lord Brooke?
Q1567 Lord Brooke of Sutton Mandeville:
It is quite possible that our witnesses will feel the question
I am going to ask, which follows on from Mr Page, has already
been answered in their answers to Mr Page, but in the interests
of precision, should those gambling advertisements which originate
from outside the UK, or indeed any such, because I realise some
might excluded, be regulated?
Mr Brown: Certainly within the
European area they should be regulated, but at the moment they
are being regulated on what we would call a "country of origin"
basis under the Single Market, so that if an advertisement comes
in from France, to make life simple, and it is seen by a British
consumer who complains about it, they would complain to the ASA
and the ASA through a body based in Brussels—the European
Advertising Standards Alliance—would refer it to the French
system for adjudication. Thus there is a way of managing cross-border
activity within Europe, but there is not a way of managing it
outside, and the Internet is very tricky, so I think the way that
the industry is increasingly looking at the Internet is to think
about safe areas within it to try and provide consumers with reassurance
that where they are trading is actually an okay place to be. That
is rather different from conventional media where you want to
get rid of unsafe places, but in the Internet situation that is
not going to possible.
Q1568 Lord Brooke of Sutton Mandeville:
Has Mr Graham any comments to make because it was his answer earlier
that caused me to wonder whether the question had already been
answered.
Mr Graham: So far as cross border
complaints are concerned, within the European Union there are
two developments which may be relevant. The first is the European
Advertising Standards Alliance, which is the self-regulatory clearing
house, if you like, for cross border complaints, among other things,
and it is very seized of the imminent expansion of the European
Union and the need to have ASAs in the 10 enlargement countries.
We have got four out of 10 at the moment and we have got to work
on the other six in pretty short order.
Q1569 Chairman: Would you like to
identify who the four are?
Mr Graham: Hungary, the Czech
Republic, the Slovac Republic and Slovenia. We are working on
Poland next because that is 50 per cent of the enlargement and
we have got plans for road shows in the Baltics. We were in Athens
last week urging the Greeks to sort out the Cypriots and so on.
There is an awful lot of activity to make sure that self-regulation
is effective across the Single Market because, quite honestly,
the system is only as good as its weakest link, and it is no good
the ASA doing its stuff in the UK if we cannot sort out for UK
consumers mailings that are coming in from Austria or the Netherlands
or whatever. There is a lot of work going on there. Perhaps the
Committee can be reassured on that point. The second area is on
the European Commission front. Committee members may be aware
that there is a lot of effort going into an Enforcement Co-operation
measure because our backstop is the Office of Fair Trading and
the equivalents of our Office of Fair Trading are to different
extents effective in different Member States, and the Commission
is putting a lot of effort into making sure that there is an effective
regulatory network that works right across the Single Market so
that when we refer an advertiser that we cannot get any sense
out of, the Office of Fair Trading has an effective partner to
pursue it. The proposal in the policy note about the reserved
power to prohibit the advertising of gambling from particular
jurisdictions might not need to be called into play quite so soon
as it otherwise would be if the enforcement regulations go through
and the OFT can deal with similar organisations in different countries,
so I think there are lots of different policy initiatives continuing.
We are doing what we can in new media. I have talked about our
Internet remit. We are also geared up to deal with text messaging.
If you get a text message which you think is misleading or offensive
you can refer it by text to the Advertising Standards Authority.
We are well on top of on-line complaints. 45 per cent of complaints
to the ASA last year came in via e-mail through our on-line complaints
form. We are not some fuddy-duddy organisation that has not caught
up with the real world. We are very seized of the fact that new
media pose new challenges to regulators and we have got to be
geared up.
Q1570 Lord Brooke of Sutton Mandeville:
I think that is one of the more reassuring answers we have received
in all the period of these evidence-taking occasions. You have
omitted Malta in what you have said. For historical reasons a
lot of British might feel Malta was closer to us than any of the
other nine countries.
Mr Graham: We look forward to
visiting Malta!
Q1571 Lord Brooke of Sutton Mandeville:
To go back to Mr Brown's remarks about safety, where or how would
that be taken forward?
Mr Brown: The safety of?
Q1572 Lord Brooke of Sutton Mandeville:
You were saying as far as the Internet was concerned there was
an interest in concentrating on areas which were safe as against
concentrating on areas which were unsafe?
Mr Brown: I think where it is
at the moment it is quite tricky because it has to be led by advertisers
who want to boost levels of consumer confidence in what they are
doing on the Net. The problem with national kite marks, which
is the obvious route to go down, when a multi-national ends up
on the "Formula One" principle covered in kite marks
and they all in effect remove the common sense of each other.
There have been some attempts. Within CAP we have tried to introduce
a scheme to increase confidence called Admark but it has had very
limited take-up. I think there are a lot of people looking at
various areas to try and improve levels of consumer confidence,
but I still do not think they have got anywhere near cracking
the answer, so it is not as advanced as I would like it to be.
Q1573 Lord Brooke of Sutton Mandeville:
Finally and light-heartedly because it involves a source from
outside the United Kingdom, what would you estimate Lord Lipsey's
verdict would be on an advertisement that quoted one of the great
Damon Runyon's characters to the effect that "the race is
not always to the swiftest nor is the battle to the strongest,
but that is the way to bet"!
Mr Brown: I will pass that to
the regulator, of course!
Mr Graham: Well, it is dangerous
to say almost anything about betting without first consulting
Lord Lipsey himself.
Chairman: We would vouch for that too.
Lord Wade wanted to pursue this a little further.
Lord Wade of Chorlton: We have already
discussed the issue of advertising on the Net and so on but how
great is the problem posed by SPAM e-mails and Internet pop-ups?
Q1574 Chairman: Before you answer
can I say it is a huge problem to Members of Parliament. I get
about 400 SPAM e-mails every single day.
Mr Graham: I think you should
perhaps distinguish between pop-ups and SPAM. Pop-ups are a legitimate
advertising medium. If they are annoying advertisers will use
them less and less, and there is some evidence of that. SPAM is
illegitimate. The latest edition of the Code was ahead of the
game with the electronic marketing rules and the new provisions
here made it very clear that people would expect to opt-in and
not receive material which was not welcome. I do not know what
it is like in the Palace Westminster but I heard in another Committee
they were talking about the problem of SPAM. I do not know how
good the fire walls are because Members of Parliament seem to
be getting a lot more exciting e-mails than I get because we have
a very effective fire wall.
Q1575 Lord Wade of Chorlton: What
action do you take? You say that in your code there is a restriction
laid down for these issues, but what can you do if somebody complains
to you about a particular SPAM or pop-up?
Mr Graham: First of all, if it
is simply a breach of a new rule about something coming uninvited
then we can adjudicate on that. It might be that they thought
the advertisement was misleading or offensive or socially irresponsible
and then we would look at it under the appropriate section of
the code. If we upheld the complaint we would publish that on
our web site. We publish our adjudications each Wednesday morning
and quite a number of them get a certain amount of coverage, particularly
because there is a certain element of "name and shame"
about it. The persistently misleading advertiser could be referred
to the Office of Fair Trading for action under the Control of
Misleading Advertisements Regulations. With pop-ups we can talk
to the Internet service provider, and we get good co-operation
there. If someone is spamming the world from a garage in Nevada
there is not a lot I can do about it.
Q1576 Lord Wade of Chorlton: Somebody
who sends SPAM is not going to be worried too much about shaming
anyway. He has already been sufficiently shamed to have thought
it up in the first place.
Mr Graham: That is why it is important
for regulators to be clear about what they can or cannot do. The
Gambling Commission is not in any different situation in dealing
with the man in the shed in Nevada.
Q1577 Lord Wade of Chorlton: Following
on from that, who should bear responsibility for controlling the
content of the gambling adverts, the platform provider or the
operator?
Mr Brown: The first source of
responsibility is the advertiser, the operator. They are the person
who is commissioning an advertisement, they are paying for it
to be placed. I think there is quite an important bit in the policy
note on providing for an offence for the media who carry advertisements
that may be problematic, and I think that is right. You use the
media as a policeman or as a gatekeeper to stop publication. That
is quite different from making them responsible for the content.
The content, in my view, has to be the responsibility of the operator
who commissions it and the agency presumably has a responsibility
because they are preparing the advertisement but they are preparing
the advertisement to a brief provided by the operator so the operator,
in my view, is the primary source of responsibility. That why
if there is an independent adjudication against that operator
and that operator refuses to amend their advertisements, and for
some reason they continue to get them published, it seems to me
they should be referred to the Gambling Commission.
Chairman: Thank you. Can we move on to
problem gambling?
Q1578 Viscount Falkland: Your written
evidence to us on gambling services advertising to children and
young people leads me to ask you the question whether you really
think it is fair and workable? Indeed, is it possible to prevent
children receiving advertisements for gambling products?
Mr Brown: You can minimise it
and you can certainly ensure that the advertisements are not targeted
at children and you can ensure that the content of an advertisement
is not likely to have particular appeal to a child. You can do
all those kinds of things. The reality is that you cannot cocoon
children from commercial messages. For example, more children
watch adult television than watch children's television designed
for them. You cannot isolate children from commercial messages,
they will see something. What you can do is ensure that the way
that it is designed does not have particular appeal to them. I
think you have content rules that make it less relevant and you
have media rules that reduce the likelihood of exposure rather
than maximising it.
Q1579 Viscount Falkland: In your
written evidence you suggested that young persons should be treated
differently when it comes to whether or not they should be advertised
to. Can you amplify that a bit more?
| 
