Last year, the Turnbull Government announced that it was moving to restrict the promotion of gambling and betting to curb problem gambling and make sport more family friendly. This led to amending the Broadcasting Services Act (Act) and new broadcasting codes of conduct registered with the Australian Communications Media Authority (ACMA).
There are also draft rules governing sporting events broadcast online (Online Rules) which we review here.
The new codes of conduct took effect for commercial and subscription television and radio as of 30 March 2018. We have focused on the new commercial television code of conduct (Code), but the other codes are generally similar.
The Code greatly restricts or entirely prohibits advertisements relating to gambling or betting during a ‘live sporting event’ on commercial television.
What is a ‘sporting event’?
The explanatory memorandum says that ‘sporting event’ has its ordinary meaning. The Act and Code both specifically include particular sports as ‘sporting events’ (such as the Commonwealth and Olympic Games). A ‘sporting event’ also includes related programming such as half time shows.
One interesting question is whether professional games such as poker or electronic games (eSports) would be a ‘sporting event’. For instance, an International Olympic Committee summit in 2017 acknowledged the potential for a team-based form of poker and competitive eSports to be considered as an Olympic sporting activity. This is especially relevant given the popularity of eSports with children and teenagers.
ACMA has proposed that ‘electronic sports competitions’ be included as a ‘sporting event’ for the purposes of the Online Rules, but we are otherwise not aware of any specific reference to such events under the ACMA codes of conduct.
When is a sporting event ‘live’?
A broadcast of a sporting event is ‘live’ if it is live coverage that includes the period of the actual run of play. However, an event will also be deemed to be ‘live’ if:
- If it is delayed up to 90 minutes (for any reason) and it is broadcast as though live; or
- It is delayed for time zone reasons and broadcast as though live. This has significant implications for sports played in the northern hemisphere such as European football.
What is prohibited?
The new additions to the Code relate to the promotion of betting odds (Live Odds) and commercials for gambling or betting services (Gambling Advertisements).
- At all times:
- Live Odds from commentators and guests are prohibited within half an hour either side of play; and
- Gambling representatives must be clearly identified, cannot be part of the commentary team and must not look like they are at the venue.
Between 5am and 8:30pm, all Gambling Advertisements and promotion of Live Odds by gambling representatives are prohibited within 5 minutes either side of play.
Between 8:30pm and 5am:
- Gambling Advertisements may play in scheduled breaks and before or after play; and
- Live Odds may be promoted before or after play.
The relevant time zone under the Code is that of the viewer and not, for instance, that of the venue or the broadcaster.
Responsible gambling
In addition to the above restrictions, where Gambling Advertisements are permitted, they must be accompanied by a responsible gambling message. Existing restrictions on the promotion of gambling and betting (such as that they must not be directed at children or portray betting as a way to success or achievement) remain.
Exceptions
There are a number of exceptions in the Code. For instance, the Code does not restrict:
Event exceptions: horse, harness or dog racing, including the Melbourne Cup. The Government has indicated this is due to the intrinsic relationship between wagering and those sports.
Accidental or incidental advertisements: promotional content that is accidental or incidental, as long as the broadcaster does not receive any benefit from that content. This would likely include the name of the sporting venue; content on the players’ uniforms; and signage at the venue.
Foreign broadcasts: foreign broadcasts where (i) the Australian broadcaster did not add the advertisement to the broadcast; (ii) it is not reasonably practicable to remove it; and (iii) the Australian broadcaster does not receive any benefit from it.
Other limited exceptions may also apply in certain circumstances.
Review
ACMA will monitor this new Code for 12 months, at which point it will decide whether a formal review is needed.
This article was written by Jennifer Huby, Partner and Ben Cameron, Associate from our Media & Entertainment Group.
Jennifer Huby
P: +61 2 9334 8638
E: jhuby@hwle.com.au