Coalition's proposal for gambling ads

In his Budget in Reply speech last week, Opposition Leader Peter Dutton said that the Coalition would ‘move to ban sports betting advertising during the broadcasting of games’. The ban would also apply for an hour each side of a game. Several media reports in the day following the speech referred to this as a plan to ban gambling ads. But we already have some rules on this, so what does this proposal amount to?

The Commercial Television Industry Code of Practice prohibits the broadcast of gambling ads altogether during the 5am to 8.30pm bracket. The ban extends to 5 minutes before the scheduled start of play and 5 minutes after the end of the live broadcast. After 8.30pm, the rules are less restrictive, so that ads can also be shown before and after play as well as during breaks in play. The Coalition’s proposal tightens current restrictions in two ways: firstly, by extending the existing gambling ad blackout for a further 55 minutes on either side of a game; and secondly, by removing the broadcasters’ ability to show gambling ads during breaks in play after 8.30pm.

While this is an interesting proposal, it seems odd that the tightening of the rules doesn’t come with any ideas for improving the range of enforcement options available to ACMA, the regulator, when the rules are breached. In last week’s newsletter, we noted the lack of options available to ACMA when it found that Foxtel breached the pay TV code of practice in relation to climate coverage on the Outsiders program. The same enforcement issue arises here. Despite the differences in programming, using codes of practice to embed gambling restrictions means that unless the licensee offers ACMA an enforceable undertaking, the regulator can only impose a licence condition. Breach of an additional licence condition might in turn lead to a direction to comply, a breach of which might then lead to an application for a civil penalty order from the Federal Court. ACMA did accept enforceable undertakings from both Nine and Seven in December for breaches of the gambling ad rules in their live coverage of the 2021 NRL grand final and the 2021 Olympics, respectively. But an undertaking is only an option if the licensee is prepared to offer one — the regular can’t insist on the licensee giving one.

Inserting these rules in a code of practice — and ramping them up, as proposed by the Coalition — therefore seems an odd choice for an issue that’s attracting an increasing amount of public and parliamentary attention.

Another curious aspect is that while the same rules apply to streaming services — including those offered by the broadcasters themselves — there are additional enforcement options for breaches online because those rules are set out in service provider rules under the Broadcasting Services Act, not in a code of practice. ACMA’s options extend to issuing a formal warning, an infringement notice, a remedial direction or an application for a civil penalty. Indeed, in December, ACMA issued Seven with a formal warning for the breaches of these rules in its live stream of the 2021 Olympics, but it couldn’t do that for Seven’s broadcast content.

This can be seen as another example of the problem we discussed in the last newsletter: inconsistency in regulation of the same content across different platforms. The Coalition’s proposal could add to this problem, as the Budget Reply speech didn’t mention changes to the online rules — it only dealt with TV. It seems the issue of gambling ads — and media regulation more broadly — has some way to go before there’s a consistent and coherent, cross-platform approach.

This article is from our UTS Centre for Media Transition fortnightly newsletter published on 19 May 2023.

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Professor Derek Wilding — CMT Co-Director