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Product: Leisure - Gambling
Advertiser: Paddy Power
Medium: Brochure, Leaflet
ASAI Code 7th Edition: 2.4(c), 3.26, 3.27, 3.28(a), 3.28(b), 3.29, 10.17(f)
An advertisement in the race card for a meeting at The Curragh Racecourse by Paddy Power featured the superimposed images of one Mayo GAA and two Dublin GAA players. The advertisement stated:
“MONEY BACK AS A FREE BET
If your losing 1st Goalscorer scores anytime
Applies to selected live GAA Championships games.
Max refund €20 per customer – Irish retail only. Excludes goals scored in extra time.
Special runs from 20th May – 17th Sept. Applies to win part of each-way bets only. Free bet stake not included in any subsequent winnings. Paddy Power GAA Rules apply.”
€5 MATCHED BET
ON FIRST GOALSCORER MARKET
Valid only on Dublin VS Mayo / Sun. 17th Sept 2017
GAA Football All-Ireland Championship Final”
The Gaelic Players Association objected to the advertising on the grounds that it had featured the images of a Mayo player and two Dublin players. They said that none of the individuals had given their permission for their image to be used for this specific advertisement, nor had they given a general consent to Paddy Power for their images to be used in any way.
They also said that they have campaigned strongly and determinedly for quite some time on the problems caused by gambling on young men. They said that they were aware of several of their members who had developed an addiction and were conscious of how gambling debts could be a pathway to behaviour that may impact the integrity of their games. They, therefore, would not ally themselves to any business operating in the betting or gambling sector and the use of the images had therefore undermined this stance.
The advertisers noted that the Executive had requested comments on the complaint against the following Code provisions, Sections 2.4(c), 3.26, 3.27 and 3.29, however, they considered that Sections 3.28 (a) and (b) and also 10.17 were also relevant.
They said that the advertisement had advertised a “Money back as a free bet” offer on GAA matches where Paddy Power would refund losing first goal scorer bets, up to €20, if that player scored anytime in the match. They said that on the day the advert appeared in the race card at the Curragh races, there was only one more senior GAA match left to take place in the season, which was the All-Ireland SFC Final between Mayo and Dublin. They said that the promotion was therefore specific to this match and the GAA players featured were chosen as they were all due to play in the final. They said that when selecting the players they ensured that they were all over 25. They said that during the match a Dublin player, who had not been featured in the advertisement, scored the first goal of the match and this was followed by a Mayo player, who was featured in the advertisement, scoring the second goal. As advertised, customers who had backed the featured Mayo player to be “the first goal scorer” were then entitled to a refund on their losing bet in accordance with the terms and conditions.
They said that the photographs used in the advertisement were licensed from Inpho Sports Photography who own the copyright in the images and they had required the necessary licenses to use the images in the advertisement. They said that they had decided to use players from both teams and to feature more than one player in total in order to remain neutral/impartial and to avoid any implication of endorsement where none had existed. They denied that the use of the GAA players was unfair or had exploited their public reputations or was humiliating or offensive or had breached any provision of the Code.
The referred to Section 10.17(f) of the Code which stated that:
“Marketing communications should not feature anyone who is, or seems to be, under 25 (18-24) years old, unless those individuals feature only to illustrate specific betting selections or options where that individual is:
(i) The subject of the bet offered,
(ii) Is in a team that is the subject of the bet offered, or
(iii) Is part of an event which is the subject of a bet offered.”
They noted that this section specifically dealt with using sports persons to illustrate betting selections and that it indicated that the use of player imagery to illustrate betting selections was permissible under the Code under specific conditions. They said that the GAA players used in the advertisement were all betting selections in the bet offered, i.e. first goal scorer, and/or were all taking part in the GAA Final event and/or all play for teams taking part in the GAA Final. They therefore believed that the advertisement was a legitimate use of the players as they were all used to illustrate betting selections.
They noted that Section 3.27 of the Code provided that advertisers should have written permission in advance from living persons portrayed or referred to in a marketing communication, however, they considered that Section 3.28 provided exceptions to this rule. Section 3.28 states:
“Exceptions where permission may not be required include:
(a) The use of crowd scenes or property depicted in general outdoor locations, or where the purpose of the marketing communication is to promote a product such as a book, newspaper article, broadcast programme or film of which the person concerned is a subject.
(b) In the case of people with a public profile, references that accurately reflect the contents of books, newspaper articles, broadcast programmes, films or other electronic communications, etc.”
They considered that the exception applicable in this case was from Section 3.28(a) where a person was being used to promote a product. Although they accepted that betting markets were not specifically mentioned in this rule, they believed that the list of “products” contained was not an exhaustive list, particularly as the words “such as” was used before the list of example products. They believed that using sports people to illustrate betting selections where the individual was the subject of the bet offered or was in a team that was the subject of the bet offered or was part of an event which was the subject matter was analogous to promoting a “book” where the person concerned was a subject, and therefore, should fall within the exception in Section 3.28(a) where written permission may not be required in advance.
In regards to Section 3.28(b), they noted that this exception only applied to people with a public profile. They said that GAA Football was one of the most popular sports in Ireland in terms of attendance, and the GAA Final drew crowds of more than 80,000 people. They believed that GAA players taking part in the GAA Final had a ‘public profile’ and the use of these players to accurately reflect and illustrate betting selections where the individual was the subject of the bet should fall within Section 3.28(b) where written permission may not be required in advance.
While they believed that using GAA players in marketing communications to illustrate betting selections should fall within the exceptions contained in Section 3.28(a) and/or 3.28(b), they were conscious that certain individuals may not want to be included in certain types of marketing communications. They said that if they were notified that certain players did not want to be featured in the advertising, for example, if the player had experienced issues with gambling in the past, they would immediately comply with these request and cease all use of that player in future advertisements. They said that if the Gaelic Players Association was aware of such instances, they would welcome the opportunity to work pro-actively with the Gaelic Players Association to ensure that players with gambling issues are not included in gambling adverts.
Notwithstanding this, they believed that using player imagery to illustrate betting selections was permitted under the ASAI Code and that exceptions existed in Section 3.28, therefore written permission was not required in advance to include these players in marketing communications. They did not believe that the Gaelic Players Association had the right to demand that all senior GAA players be removed from all forms of advertising, particularly where such use was only to illustrate betting markets in which those individuals were the subject of the bet offered.
The Executive made enquiries with Inpho Sports Photography, the owner of the copyright of the images, regarding the rights an advertiser would have when using an image they purchased. In reply they said that the rights would depend on the image itself. If the image was of a GAA player, then permission would be required from the equivalent body and if the player was featured in their club jersey, then permission would also be required from the club.
The Complaints Committee considered the detail of the complaint and the advertisers’ response. The Committee noted that the advertisers had purchased licenses to use the images and that they considered that the players were the subject of the bet and that therefore, permission was not required for their use in advertising. While the Committee accepted that the only GAA match due to be played after the publication of the advertisement was the Senior Football Final featuring Dublin Vs Mayo, they considered that the text used in the advertisement had not referred to any named player and had stated “If your losing 1st Goalscorer scores anytime. Applies to selected live GAA Championships games”, therefore the bet could apply to any player.
The Committee noted that Section 10.17(f) of the Code permitted people under 25 to be in marketing communications for gambling services in limited circumstances. The Committee also noted that the Code rules were indivisible (2.4) and therefore other Code sections, where appropriate, would apply concurrently. In this regard, they considered that, in tandem with Section 10.17(f), Section 3.27 (which provides that advertisers should, subject to certain exceptions, have written permission to feature living persons in their advertising) also applies.
The Committee considered whether Section 3.28(a) exceptions applied in this case. They noted that the advertisers considered that the list of exceptions was not exhaustive and the Committee formed the same view. The Committee did consider, however, that the list in Section 3.28(a) was restricted to a specific category, being forms of communications. They did not believe that an advertisement for a promotional bet, offered by a gambling service, to be akin to a “book, newspaper article, broadcast programme or film of which the person concerned is a subject”, (Section 3.28(b)).
The Committee noted that the permission to be featured in the advertising had not been given by the individuals involved and found therefore, that the advertising was in breach of Section 3.27 of the Code.
The advertisement must not reappear in its current form.