Last year, the Turnbull Government announced that it was moving to restrict promotional content of gambling and betting in order to curb problem gambling and make sport more family friendly. This led to amendments to the Broadcasting Services Act (the Act), as well as a series of new broadcasting codes of conduct (Codes) registered with the Australian Communications Media Authority (ACMA).
As a result, ACMA is now able to regulate online content as well as broadcast content.
Consultation process
ACMA has issued draft Broadcasting Services Online Content Service Provider Rules 2018 (Online Rules) and a consultation paper regarding those Online Rules (Consultation Paper). ACMA has asked for submissions on a range of issues, including:
- The entity that should be responsible for compliance with the Online Rules;
- Any impediments that may prevent compliance with the Online Rules; and
- A number of important definitions, including ‘sporting event’.
The closing date for submissions is 10 May 2018 so it is important to act quickly if you have any comments in relation to the Online Rules.
Service provider
It is proposed that the Online Rules will apply to every service that:
- Delivers ‘live sporting events’ via the internet or allows end-users to access such content;
- Is provided to the public (whether or not there is a fee to access that content); and
- Has a geographical link to Australia.
ACMA acknowledges that third parties often coordinate the placement of advertisements and that multiple entities can be involved in delivering the content, including the producer of the content, the website / application operator; and content aggregators.
Nonetheless, the draft Online Rules take the view that the content service provider is the entity that (ultimately) benefits from the advertisements and that therefore that entity is responsible for complying with the Online Rules. In this respect, ACMA notes that any advertising placed by third parties still benefits that the content service provider, and that advertising agreements can usually accommodate restrictions to exclude certain types of advertising.
‘Live’
In addition to the ordinary meaning of ‘live’, the draft Online Rules propose that content will be deemed to be ‘live’ if it is streamed as if it were live and it begins no later than the end of the sporting event. This is a slightly more restrictive definition than that which applies to the Codes (which allows delays of up to 90 minutes or, for time zone issues, longer).
‘Sporting event’
The draft Online Rules specifically include ‘an electronic games competition’ (eSports) as a ‘sporting event’ in recognition of the rise in popularity of (and the sponsorship and advertising deals that are following) eSports in Australia. ACMA has specifically asked for submissions on this issue and it will be interesting to see whether there are any resulting changes to the Codes.
Geographical link to Australia
A service has a ‘geographical link to Australia’ if it targets individuals in Australia; or any of the content provided on the service is likely to appeal to the public or a section of the public in Australia. Given Australia’s general preoccupation with sport, this may mean that nearly all online streams of sports are caught by the Online Rules.
What is prohibited?
The Online Rules propose a number of restrictions to the promotion of betting odds (Live Odds) and commercials for gambling or betting services (Gambling Advertisements).
During a live sporting event and within half an hour either side of the scheduled start and end of play, commentators and their guests must not promote Live Odds. Likewise, gambling representatives cannot appear as if they are at the venue. As with the Codes, all gambling representatives must be clearly identified as such and must not be part of the commentary team.
Between 5am and 8:30pm, Gambling Advertisements must not appear within half an hour either side of the scheduled start and end of a live sporting event.
Between 8:30pm and 5am, Live Odds may be promoted (other than by commentators or their guests) before or after a live sporting event, or at set times during events that take place over multiple days. Gambling Advertisements may also appear during unscheduled breaks and in some scheduled breaks.
Safe gambling
In addition to the above restrictions, permitted Gambling Advertisements must be accompanied by a responsible gambling message. It is proposed that the same content restrictions in the Codes (such as that Gambling Advertisements must not be directed at children or portray betting as a way to success or achievement) will also apply to online content service providers.
Exemptions
It is proposed that a service provider will be exempt if:
- Simulcast: The Service Provider does no more than provide a stream of content that is identical to a broadcast and that stream is provided simultaneously, or almost simultaneously, to the broadcast. In such situations, the relevant broadcast code will apply;
- Small provider: The provider has fewer than 100,000 unique users per month across all their online services (including those provided by related bodies corporate); and
- Adults only: It is limited to adults. A number of hurdles are suggested for this, including taking reasonable steps to confirm that the user is at least 18 years old.
It is proposed that other exemptions will also apply, such as for horse, harness and dog racing; and for incidental or accidental advertisements (such as the content on players’ uniforms) as exist in the broadcasting codes of conduct.
Penalties
Under the Act, ACMA has the authority to investigate breaches of the Online Rules. ACMA has a number of powers where it discovers breaches, including issuing infringement notices (of up to $12,600 for a body corporate); instituting court proceedings (with civil penalties of up to $63,000); and penalties of up to $420,000 if a body corporate fails to comply with directions.
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