Memorandum from the Newspaper Society
(DGB 16)
The Newspaper Society is the association of
publishers of the regional and local press. Its members publish
over 1,300 newspapers, paid-for and free, dailies and weeklies,
circulating throughout the United Kingdom. Our interest in the
Gambling Bill relates primarily to the area of lotteries and prize
competitions. Our involvement in this regard is twofold: firstly
as publishers of advertisements, with the need to be able to readily
and with certainty determine whether a scheme is lawful and may
be lawfully advertised, and secondly as regards our own activities
whether as organisers of occasional "reader competitions",
publishers of traditional newspaper prize contests such as Spot
the Ball and crossword competitions, or other similar promotional
features.
We will be commenting in more detail to DCMS
in relation to the draft Bill but in this submission we are confining
our comments to two points.
THE DEFINITION
OF A
LOTTERY (CLAUSE
206 OF THE
BILL)
We warmly welcomed the Government's statement
in June this year that it intended to clarify the definition of
a lottery as being a scheme where the determination of prizes
was entirely by chance. We regarded this as a sensible and forward-looking
approach which would clear up once and for all an area of law
which had caused confusion and misunderstanding for many years.
Clause 206(1) itself achieves this admirably.
It removes the previous uncertainty as to "how much skill
suffices" for a scheme not to be a lottery. According to
Clause 206(1) only if the determination of prizes was wholly by
chance could the scheme be a lottery. If the draftsman had stopped
at that point, all would have been well.
Unfortunately, the inclusion of the proviso
set out at Clause 206(4) not only seemingly drives a legislative
coach and horses through the proposition of 206(1) itself but
in our view leaves the practical situation worse than at present
in that its effect would be to criminalise a number of schemes
which are presently lawful (since for present purposes the crux
of the issue in determining whether a scheme is a lottery is,
inter alia, whether success depends to a substantial degree
on the exercise of skill).
206(4) provides in effect that an element of
skill is not effective to prevent a scheme from being deemed a
lottery if that element of skill is "not likely to prevent
persons who want to enter the lottery from doing so". In
other words, if people are not deterred from entering, it is still
a lottery, no matter how at what level the degree of skill is
pitched. Subsection (4) does not require any consideration to
be given to the level of skill. By this token seemingly a pay—to-enter
prize crossword competition could be deemed unlawful since the
allocation of prizes depends on chance (first correct entry drawn)
and the skill element does not prevent the readership from entering
the scheme (presumably because they feel their skill and judgment
is equal to the challenge set by the compiler).
It seems that the Government was in 206(4) seeking
to address the issue of those schemes which rely mostly on chance
but where a small element of skill is appended. This seems at
variance with the Government's statement this summer that the
Bill would "provide that a lottery is a scheme, requiring
payment to enter, in which the destination of the prize or prizes
is determined entirely by chance. A scheme in which a degree of
skill or knowledge is needed in order to secure a prize will not,
therefore, be capable of being a lottery" (emphasis added).
We would urge the Government to retain this
stance. We would question what mischief requires to be addressed
by seeking to legislate specifically so as to catch "low
skill" schemes. This is often very much a matter for subjective
judgment in any event. To seek to address this issue would in
our view force the re-adoption of a legislative formula based
on the present one ie. requiring a weighing up of the elements
of skill and chance as to which was the more significant in terms
of one's overall chances of winning a prize. This would leave
us precisely where we started in terms of uncertainty.
We would urge the deletion altogether of sub-clause
206(4).
SCHEDULE EIGHT:
EXEMPT LOTTERIES:
PART THREE
CUSTOMER LOTTERIES
We would query why it is intended that the new
"Customer lotteries" should not be advertised (Paragraph
20). Unlike private lotteries, these are not restricted to a particular
"closed" class of individuals. Particularly in the context
of our medium, it would seem a shame if the local High Street
florist running a customers' Christmas lottery should be prevented
from letting the community know of it by advertising that fact
in the local press if they so chose. The provisions of Para 18(b)
regarding sales of tickets only to customers on site, and the
limits of £50 prizes, seems more than adequate to control
and limit these types of schemes without further restrictions.
Finally, we would just like record that we very
much welcome the provisions of Schedule 7, particularly Para 2
(c) and the clarification regarding free entry routes. This is
most helpful.
We would be very willing to attend the Joint
Committee and provide oral evidence if this would be helpful.
Alternatively if there is anything further we can provide at this
stage please do not hesitate to let us know.
We thank you for this opportunity to comment.
December 2003
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