No more free plugs for Sportsbet?

The government’s proposed gambling laws received a fair amount of criticism when they were tabled in Parliament a few weeks ago. The Bill has now been sent to a Senate committee that’s due to report in mid-August. The package works on a number of levels, including measures to block access and payments to illegal offshore gambling sites and improvements to BetStop, the National Self-Exclusion Register, as well as restrictions on advertising. In fact, the new approach makes sweeping changes to existing legislation because it dismantles part of the current regulation under the Broadcasting Services Act and establishes new rules under the Interactive Gambling Act. It will supersede the gambling advertising rules that apply to streaming services and the broadcasting rules that are found in the various codes of practice, giving the regulator (the ACMA) more enforcement options for breaches.

We won’t go into all of this here. Instead, we’ll look at one interesting part of the proposed advertising rules: restrictions that bring online influencers and celebrities more squarely within the regulatory framework – and maybe even go a bit further.

The foundation of the new regulatory framework is the suite of prohibitions on causing “wagering advertising content” (more on this term later) to be made available on a broadcasting service or online. The prohibitions apply to broadcasters (for their broadcast services), online content service providers (like streaming services and also the broadcasters’ video-on-demand services such as 9Now and 7plus) as well as to “interactive wagering service providers” like Sportsbet, Ladbrokes and Neds.

In addition, there’s a new rule about the use of “notable persons” in ads and other promotions. Section 62W (paraphrasing) bans arrangements for sponsorship, participation or involvement of these notable people in promoting wagering advertising content. Under s 62F, a “notable person” includes a current or former professional sports player or athlete, celebrity, social media influencer, or other prominent individual. No “current or former journalist” who now has their own podcast …. but these categories are overlapping and could be all-embracing.

The sting in the notable persons provision is in the civil penalty that applies to a breach – and it can apply not once, but each time an ad appears. The prohibition (and therefore the penalty) applies to the wagering service provider but not to the notable person – a bit like the cash for comment rules that apply to commercial radio licensees but not to the current affairs presenters whose conduct they seek to regulate.

Not surprisingly, there’s an exception for journalism in s 62ZC, but it’s not as wide as we might expect. It kicks in where the gambling promotional content is part of a news or current affairs report or part of a documentary. But there must be no “direct or indirect benefit (whether financial or not)”. In addition – like its precedent in a separate Act that bans tobacco ads – there’s a public interest test: the wagering service must establish that “the public interest in the conduct outweighs any likely adverse effect”.

This raises an interesting question in the light of that Media Watch report a few weeks ago about a segment on Nine’s Today program. The segment discussed the launch of the World Cup but it was just as much, if not more, about Sportsbet’s own World Cup campaign. It featured very prominent images of the gambling service as well as commentary by John Aloisi. Mr Aloisi, according to Nine, is a “Socceroos legend”. Could the Today segment be caught by the new prohibition?

It’s always risky to make predictions when a proposal is new, the drafting is likely to change and you know nothing about sport, but we can at least look at some of the relevant factors: (i) Sportsbet is certainly the type of wagering business the Act is seeking to regulate; (ii) the segment on Today promotes Sportsbet; and (iii) it features John Aloisi, a “notable person”, whether by virtue of being “a current or former professional sports player or athlete” or a “current or former prominent individual”. A contravention of this provision, though, would require the promotion of “wagering advertising content”. Over many years, Media Watch has published countless examples of content that promotes a business but doesn’t contravene commercial disclosure rules because there is no specific consideration – no direct payment to the broadcaster or publisher. But the definition of “wagering advertising content” in this new Bill, similar to a definition in Schedule 8 of the BSA, targets “advertising, sponsorship or promotional content”. The content will fulfill the definition if it has, or is likely to have, a purpose or effect of promoting the service, or if it’s made by or on behalf of, or for the benefit of, the service. To make this clear, the Explanatory Memorandum says the rule will apply to, among other things, “in program references”.

I could be missing something here, but out of interest, let’s move on and consider what would happen if the journalism exception came into play. In a scenario where the ACMA is seeking a civil penalty for breach of the provision, the application of the exception is something Sportsbet would need to establish. The content published on Today does relate to a news report or a current affairs report, but there are two questions remaining. First, can Nine be said to have received a direct or indirect benefit? And second, does the public interest in publishing the content outweigh any likely adverse effects? These two questions could take as long to answer as the Bill took to get to Parliament, but you’d rather be the ACMA than Sportsbet, wouldn’t you? Even if it succeeds on this point, Sportsbet still faces the “contracts, understandings and arrangements” provision that prohibits arrangements to promote this kind of content.

All up, what looked most notable for its attempt to regulate the conduct of celebrities and social media influencers may have a more far-reaching effect.Segments like the Today interview with John Aloisi have been regarded as program material, not advertising, but this segment did feature in-program promotion for a gambling app. If the scope of “wagering advertising material” under the Gambling Reform Act is wide enough to capture in-program references, it will change the way in which this kind of content can be featured in programs like Today. Not only will promotions featuring notable people be prohibited, but presumably the other restrictions on gambling advertising, including the new “frequency cap” of three ads per hour, will apply. That would be a significant change – one worth keeping in mind when debating this much maligned legislation.

References

Interactive Gambling Amendment (Gambling Reform) Bill 2026:   https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7520  

Senate committee inquiry: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Communications/GamblingReform48P  

Media Watch report on Today and Sportsbet: https://www.abc.net.au/mediawatch/episodes/sportsbet/10677349