Australian pay TV operator Foxtel attempted to use a questionable justification to explain why it breached responsible gambling advertising regulations, according to emails obtained by CHOICE.
In April last year, a virtual banner promoting a wagering company ran across the television screens of people watching an AFL match on Foxtel and the Foxtel-owned Kayo. It did not include a responsible gambling message as required for gambling promotion content under the industry's codes of practice.
A tranche of correspondence between the regulator, the Australian Communications and Media Authority (ACMA), and Foxtel shows the broadcaster sought to argue that a responsible gambling message was not required because the ad did not include a direct prompt to bet.
The ad did not include a responsible gambling message as required for gambling promotion content under the industry's codes of practice
Under Freedom of Information laws, CHOICE obtained 14 documents from ACMA relating to correspondence between the regulator and Foxtel, which was a combined 64 pages. Two further documents were withheld because they showed the "deliberative process" of a government agency, one of the exemptions under the FOI Act. The name of the wagering company has been redacted in the documents.
A prominent gambling reform advocate along with one of Australia's top academics in the field of gambling have been critical of the broadcaster and of ACMA's process in handling the breach.
One of the emails from Foxtel obtained by CHOICE under Freedom of Information.
The word that had ACMA reaching for a dictionary
At the heart of the matter was what constitutes 'promotional' content.
After ACMA initially wrote to Foxtel with the complaint that had come from a member of the public, Foxtel argued that the ad did not fall within the definition of 'gambling promotion content' as that term is defined in the Broadcasting Services Act 1992.
"It did not encourage or direct persons to use a gambling service, or to open an account for a gambling service or to download a gambling service," the broadcaster said.
In later documents, ACMA cited the Macquarie Dictionary to justify why the ad was 'promotion content'.
"'Promotional' is not defined in the Code, and therefore is to be given its natural and ordinary meaning having regard to the context in which it is used. The Macquarie Dictionary defines 'promotion' as including an 'activity, especially in advertising, designed to increase public awareness of, and hence the sales of a product'," ACMA wrote.
At the heart of the matter was what constitutes 'promotional' content
The virtual banner contained an '18+' logo, but ACMA said this did not constitute the necessary responsible gambling message.
ACMA ultimately found the ad placed the broadcaster in breach of the ASTRA Subscription Broadcast Television Codes of Practice 2013 (the Code).
No financial penalties available
Ultimately, ACMA's action against Foxtel for breaching the Code was a press release naming Foxtel as in breach and announcing that the broadcaster had agreed to provide extra training to staff around the regulations.
The broadcaster also agreed to report back to ACMA on all steps taken to ensure the breach was not repeated.
ACMA tells CHOICE that enforcement actions available for breaches such as these include informally agreeing to remedial measures, court-enforceable undertakings by the broadcaster, or imposing licence conditions on the broadcaster. It is not empowered to set a financial penalty for broadcasting breaches.
ACMA tells CHOICE that it is not empowered to set a financial penalty for broadcasting breaches
"We adopt a graduated and strategic risk-based approach to compliance and enforcement. The ACMA took into account the steps that Foxtel had already taken to mitigate reoccurrence of this issue, including amending the advertising creative shortly after receiving the first correspondence from the ACMA," an ACMA spokesperson tells us.
The documents also reveal that Foxtel has appointed an auditor in response to a separate ACMA investigation into compliance, though details of this were not disclosed.
"More broadly, the ACMA is aware of the range of current actions that Foxtel/Hubbl Pty Limited is undertaking to address the recommendations made by its auditor Janez Media (following a separate investigation into compliance with the Online Rules)," ACMA says in the Freedom of Information documents.
'Weak regulations, weaker enforcement'
Charles Livingstone, head of Monash University's Gambling and Social Determinants Unit, likened Foxtel's initial excuse for the breach to a "ridiculous schoolboy's excuse for late homework".
"It wasn't a serious response. It seems to me that Foxtel doesn't take it seriously," he says. "The regulations themselves are fairly weak, but their enforcement appears to be even weaker."
Broadcasters must include a responsible gambling message with ads that promote gambling.
Foxtel given embargoed press release
The emails we obtained showed that ACMA sent an embargoed copy of the press release announcing the code breach to Foxtel three days before it was published in March this year.
During the banking royal commission, the corporate regulator, the Australian Securities and Investments Commission (ASIC), was criticised by Commissioner Kenneth Hayne for sending press releases to the big banks before announcing sanctions.
Commissioner Haynes argued that despite ASIC's insistence it was only asking banks to check the accuracy of the media releases, ASIC should be confident of what it was alleging and not provide banks with opportunities to correct the releases or have advance notice.
Martin Thomas, CEO of the Alliance for Gambling Reform, says ACMA must do better at being a trusted regulator.
"It is alarming. The prime purpose of ACMA is to enforce the code and protect the public. By sharing media releases it, at the very least, has an appearance of a cosy relationship with the industry, and appearances are just as important as reality," he says.
ACMA defends its process
ACMA says it "strongly rejects" any accusation of a cosy relationship between it and the broadcasting industry.
"The ACMA considers the practice of providing regulated entities with advance copies of media releases shortly before publication to be consistent with the position set out in our Regulatory Guide No 6 and with the law, including the legal principle of procedural fairness," the spokesperson says. "We consider this is also consistent with the approach taken by other regulatory agencies."
ACMA says it 'strongly rejects' any accusation of a cosy relationship between it and the broadcasting industry
In its response to CHOICE, the regulator says it would only consider making changes to media releases "which go to the accuracy of the facts contained in the release". In this instance there were no changes requested by Foxtel and the embargoed copy has the same text as the final media release that was made public.
Foxtel did not respond to requests for a comment.
Federal Minister for Communications Anika Wells did not respond to CHOICE requests for a comment on whether ACMA has acted appropriately in this instance, or if and when the government's long-stalled plan to reform gambling advertising rules would be placed back on the agenda.
We need a fairly strict code of practice which is properly enforced, with financial penalties
Charles Livingstone, Gambling and Social Determinants Unit, Monash University
Livingstone hopes that any gambling advertisement reforms include stricter sanctions for breaches like these.
"We need a fairly strict code of practice which is properly enforced, with financial penalties," he says.
"Until it does happen, then we can't be confident that these operators aren't simply going to push the boundaries as far as they can and beyond them."
For help with gambling: Contact Gambling Help Online at 1800 858 858 or gamblinghelponline.org.au.
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