Memorandum from News International Limited
(DGB 83)
News International Ltd welcomes the opportunity
to submit its comments on the Draft Gambling Bill. Our comments
focus on those clauses of the Draft Bill currently available that
could impact on prize competitions.
News International Ltd's subsidiaries publish
The Times, The Sunday Times, The Sun and the News of the World.
Our titles run a wide variety of games and competitions, all of
which are very popular with our readers. Our principal aim in
running these games is to improve reader loyalty and increase
sales of our papers.
We want to be able to continue to develop new
promotional games and competitions that can be enjoyed by our
readers. Any future legislation in this area should be tightly
focussed on outlawing only those activities where there is proven
evidence of consumer harm. Regulation should be proportionate
and well targeted, allowing scrupulous operators the freedom to
create, develop and run promotions and competitions within sensible
constraints.
1. THE GAMBLING
COMMISSION AND
PRIZE COMPETITIONS
We are pleased that the Draft Bill makes clear
that the new Gambling Commission's remit will not include the
regulation of promotional or prize competitions. Our prize competitions
are far removed from gambling and are intrinsically linked with
promoting our newspapers through increased interaction with our
readers. These activities are therefore quite properly matters
for other bodies such as the Advertising Standards Authority under
the Sales Promotion Code and the Independent Committee for the
Supervision of Standards of Telephone Information Services.
2. DEFINITION
OF A
LOTTERY
The definition of a lottery at Clause 206 of
the Draft Bill appears to us to be sensible. It makes clear that
a scheme is a lottery if there is payment to enter and the allocation
of prizes relies wholly on chance. However, we are concerned that
the wording of Clause 206(4) will do nothing to remove the current
uncertainty in this area surrounding the notion of what is, or
is not, "skill".
If a commercial pay-to-enter game does not require
the exercise of skill, it will be considered an illegal lottery.
According to Clause 206(4), it appears that some skill tests may
not be sufficient if they do not act as a "genuine barrier
to entry". However, whether or not a skill test acts as a
"genuine barrier to entry"" will be relative to
the target audience for the game or competition and will be a
matter for subjective judgement.
It will be extremely difficult to prove that
a skill test represents a "genuine barrier to entry".
How might one defend a claim that a competition amounts to an
illegal lottery using this test? The wording implies that in order
to defend that claim, it would be necessary to prove that members
of the audience were likely to have been prevented from entering.
For some types of competitions, this might require an extremely
high degree of skill required—for instance, where the competition
requires an entrant to answer a factual question. A difficult
factual question may require a reader to conduct some research,
and may require a real exercise of skill, but still not have the
effect of being likely to prevent someone from entering. What
kind of proof would be sufficient to prove that entrants would
have been likely to be prevented from entering the competition?
It appears that the uncertainty in this area
will continue as long as the Draft Bill attempts to define what
does or does not count as "skill".
Any future legislation should not inadvertently
render unlawful the popular games and competitions currently run
in our papers and in others. Where there is no evidence of consumer
harm, there would be no justification for this.
3. FREE TO
ENTER
We welcome the clarification in the Draft Bill
of what will constitute a free entry route. We believe it is sensible
to include all the means set out in Schedule 7 (5).
In particular, we are pleased that the Draft
Bill appears to state in Schedule 7 (2c) that paying for goods
or services at normal price will not constitute paying to enter
a competition. We would only suggest that the wording could be
further clarified with the following addition at the end of (2c):
"…in addition to the price of the goods or services".
4. FANTASY GAMES
The Fantasy games run in our newspapers are
very popular with our readers and we regard them as promotional
activities for our brands, often with editorial tie-in.
We run a variety of Fantasy games. Contestants
are invited to pick teams. The team members are allocated points
on the basis of their performance in the real world, following
a predetermined set of criteria. Prizes are awarded to those contestants
whose teams have accumulated the most points at the end of a set
period.
The Draft Bill does not discriminate between
promotional Fantasy games and commercial gambling. It appears
that we, as a newspaper company, would be subject to the same
licensing regime as a commercial betting operator.
If we are to be subject to licensing requirements,
we believe the requirements and application process should be
commensurate with the kind of scheme we are running: ie any application
fees should be reasonable and the application process should not
be onerous. We would like to have the flexibility to continue
to develop our promotional games, following the interests of our
readers and exploiting new technologies as they become available,
without having to return to the Gambling Commission for a new
licence at every stage.
We are particularly concerned by the prospect
of inspections. There is a potential for the inspector's powers
as set out in Clause 232 to conflict with journalists' duty to
protect their sources.
The Draft Bill would be improved if it recognised
the difference between promotional games of this nature run by
media companies and straightforward commercial gambling operations.
We are grateful for the opportunity to comment
on the Draft Bill.
December 2003
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