Background
Summary of Council decision:
Three issues were investigated, of which two were Upheld and one was Not upheld.
Ad description
A webpage, a blog post and three TV ads for online casino PlayOJO, seen in September 2021:
a. A page on the advertiser’s website www.playojo.com, stated “CHOOSE YOUR OWN DESTINY WITH OUR NEW HOT OR COLD FEATURE”. Text underneath stated “How great would it be to see which games are currently paying out and which ones aren’t, just like you could at an actual Casino? Well now you can! With PlayOJO’s revolutionary new ‘Hot or Cold’ feature, you can take control of your playtime. You’ll see the MOST and LEAST profitable games of the moment and when their last big win was, based on real game-play activity, and updated every 5 minutes! You can switch between HOT or COLD to see which games are the MOST and LEAST profitable …”. The ad featured images of various games with either a flame logo or a snowflake beside them, indicating whether they were ‘hot’ or ‘cold’. Text at the bottom of the ad stated “So will you go HOT and see if those profitable games keep on paying? Or go COLD to see if you can change the luck on the less profitable games?”.
b. A blog post on the advertiser’s website www.playojo.com, was titled, “REVEAL GAMES ON WINNING STREAKS WITH OUR NEW ‘HOT OR COLD’ FEATURE”. Text within the post stated, “If only there was a way to see how games have been performing … what’s been winning and what’s been losing. Would it make you choose your next play differently? Well amigos, that gamechanger has arrived and we’re excited to offer it exclusively at PlayOJO! Introducing our new and exclusive ‘Hot or Cold’ feature – your unique chance to see the most and least profiting games of the moment! …”. The blog featured an embedded video which linked to ad (c). Text at the bottom of the page stated “You’re in the driver’s seat now, amigo – will you play HOT OR COLD?”. At the end of the post was a button with the text “MAKE MY CHOICE!”, which redirected to the advertiser’s member registration page.
c. A TV ad showed a man looking at the PlayOJO website on his mobile phone before visiting a tarot card reader. A voice-over stated, “He was looking for something, a clue, a hint, a sign. She didn’t ask why he was there; she didn’t have to. She was reeling out the games like the answers were on the back of her hand, but how?” The tarot reader was seen discreetly using the PlayOJO “Hot or Cold” feature on her mobile phone with one hand, while revealing tarot cards with the other. The voice-over continued, “Diamond Mine has paid out recently, it’s hot to play. Rainbow Riches has paid out less, it’s cold”. During the voice-over, text appeared on the bottom of the screen stating “The Hot or Cold feature is no indicator of results or success. Please play responsibly. T&C’s apply.” The text disappeared and the voice-over stated, “Could he be lucky enough to change this? Choose your destiny with PlayOJO’s new Hot or Cold feature.” The BeGambleAware.org logo was seen in the top-right corner throughout the ad.
d. Another TV ad, featured a shortened version of the same scenario as ad (c). The on-screen text remained the same as ad (c), alongside the same voice-over reference to “Choose your destiny”.
e. A TV ad that had been further shortened, featured the same scenario as ads (c) and (d). The on-screen text remained the same as ad (c), with the same voice-over reference to “Choose your destiny”.
Issue
Two complainants challenged whether the ads:
1. misleadingly implied that the Hot or Cold feature could predict or influence future success; and
2. could irresponsibly lead to financial, social or emotional harm.
3. One complainant also challenged whether ads (c), (d) and (e) irresponsibly exploited cultural beliefs or traditions about gambling or luck.
Response
1.-3. Skill on Net Ltd explained that the “Hot and Cold” feature on their website informed players about how much money had been recently paid out on various online slots and casino games and which games had not paid out for a while. They said that information was based on algorithms updated every five minutes using real-time and accurate gameplay data. They said the function was designed to replicate a physical casino at the roulette table, where the house would show the recent history of play, to help players so inclined, to make a decision on what to bet on next.
They stated the feature allowed players to see the most and least profitable games and when their last big win was, based on real game play activity. They explained that ‘profitability’ was defined as whether the game had recently paid out more or less than the amount of bets/stakes put into the game. A “hot” game was a game that had recently paid out more money than it had taken, whereas a “cold” game was one that had recently taken more money than it had paid out.
They believed the content of ads (a) and (b) did not imply that either the “hot” or the “cold” feature was more likely to win, and the ads were not irresponsible or misleading by suggesting the feature could predict or influence future success. They said the statement in the ads that players could choose their own destiny was balanced and referred to the ability for players to choose which game they preferred depending on the type of player they were. They said the ads did not suggest that choosing either “hot” or “cold” games would give them more success. They highlighted that ad (a) referred to whether players could change the luck of a “cold” game, which they believed reinforced to players that luck was the essential element for success.
They highlighted that ad (b) closed with Terms and Conditions that stated the Hot and Cold feature was no indicator of results or success. They stated that this reference was inadvertently missed from ad (a) and they had since added it.
In relation to ads (c) – (e) they stated that the ads factually explained how the feature worked. When referencing what the criteria for a “hot” or “cold” game were, they said the ads made it clear that whether a game was hot or cold was purely determined by the terms of its recent performance.
They believed the ads didn’t make any attempt to infer that the feature would predict or influence future success. They endeavoured to make it clear that the feature was only there to provide players with information on a game’s recent performance, which might help them to decide what type of game to play going forward, based on the type of player that they were. They stated that the ads were aimed at players who would be aware that the information was based on a game’s existing state and therefore not a prediction of its future state.
They believed the voice-over references in the ads to whether the player would be lucky enough to change the profitability of a game, reinforced the impression that gambling was about luck. They said the statement in the ads that players could choose their own destiny referred to players having information they did not have before, and therefore an ability to choose which game they preferred (i.e. one that had recently paid out or one that hadn’t paid out for some time) depending on the type of player they were.
They pointed out that on-screen text informed viewers that the “Hot” or “Cold” feature was no indicator of results or success. They had included that to avoid any potential misunderstanding that the feature could influence future results.
In relation to ads (c), (d) and (e), Clearcast believed the ads were not misleading or irresponsible because the Hot or Cold feature merely recorded past performance and given past performance was no guarantee of future success, it could not be seen to predict or influence future success. They said the feature worked by showing the actual gross amount the machine had overpaid or underpaid for each game, which the player would clearly see. If a game had paid out to players more than the amount wagered on it over the last three hours then it would be labelled as Hot, and if a game had paid out less than the amount wagered on it over the last three hours then it would be labelled Cold. They believed that was similar to checking a racing form.
Clearcast said that even though they did not believe the ads misleadingly implied that the Hot or Cold feature could predict or influence future success, the on-screen text had been included for good measure to put the matter beyond doubt.
Clearcast believed the average viewer would clearly understand the use of Tarot in the ads in the context of the fortune teller cheating by using the PlayOJO app to check the Hot or Cold feature. They said the ad also made it clear that having received the fortune teller’s ‘wisdom’, the player in the ad had to decide for themself and a voice-over asked whether he would be lucky enough to change a game’s current fortunes. They reiterated that the on-screen text stating the Hot or Cold feature was no indicator of results or success, would remove any impressions formed to the contrary. For those reasons, they had agreed the script was acceptable.
Assessment
1. & 2. Upheld
The ASA understood that the games contained within the PlayOJO Hot or Cold feature were online slot games, which were games of chance. We understood that a game would be designated “hot” or “cold” depending on how much it had paid out relative to how much it had taken, over the previous three hours based on algorithms which updated the feature every five minutes. We therefore acknowledged that the feature gave an indication of recent performance of the games, but did not have any bearing on what the games were likely to pay out in future.
However, we considered that the ads contained various elements that, overall, gave the impression that the Hot or Cold feature had some effect on a player’s chances of success. For example, the references to “choose your destiny” in ads (a), (c), (d) and (e) implied that the feature had some bearing over future outcome. The statement in ad (b) that players would be “in the driving seat” gave an impression of an increased sense of control over gameplay and the outcome of games. We also considered that linking the feature to Tarot, a practice that was intended to predict the future and therefore influence the present, and the references to “looking for a clue, a hint, a sign” in ads (b) – (e), added to the impression that the Hot or Cold feature added a predictive element to gameplay. Furthermore, we considered that the references to “the most and least profitable games” in ad (a) and “the most and least profiting games” in ad (b) indicated a level of success that some consumers may have interpreted to mean that the “hot” games were more likely to pay out than the “cold” games.
We noted ads (c) – (e) contained on-screen text that stated the feature was no indicator of results or success, however we considered that it was insufficient to override the overall impression that the Hot or Cold feature offered players a sense of control over games of chance.
Because the ads gave the impression that the Hot or Cold feature offered players some control over games of chance, when that was not the case, we considered that the ads misleadingly implied it could predict or influence future success.
We also considered that because the ads gave erroneous perceptions of the extent of a player’s control over a bet by using that feature, they could encourage gambling that was socially irresponsible or could lead to financial, social or emotional harm and therefore also breached the Code on that basis.
On that point, ads (a) and (b) breached CAP Code (Edition 12) rules
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section 319(2).
(Misleading advertising),
16.1
16.1
Marketing communications for gambling must be socially responsible, with particular regard to the need to protect children, young persons and other vulnerable persons from being harmed or exploited.
and
16.3.1
16.3.1
portray, condone or encourage gambling behaviour that is socially irresponsible or could lead to financial, social or emotional harm
(Gambling).
On that point, Ads (c), (d) and (e) breached BCAP Code rules
3.1
3.1
The standards objectives, insofar as they relate to advertising, include:
a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section 319(2).
(Misleading advertising) and
17.3.1
17.3.1
portray, condone or encourage gambling behaviour that is socially irresponsible or could lead to financial, social or emotional harm
(Gambling).
3. Not upheld
The BCAP Code stated that ads for gambling must not exploit cultural beliefs or traditions about gambling or luck.
We noted that Tarot was a practice and belief system that some members of society subscribed to. As such, we considered it was a cultural tradition for some viewers.
We considered whether the presentation of Tarot in the ads exploited that cultural tradition. We noted that the ads showed the Tarot reader discreetly checking her mobile phone during the reading, and therefore relying on PlayOJO’s Hot or Cold feature, rather than the Tarot cards, to give the customer the information he requested. We considered that the ads therefore mocked her ability to foretell the future using Tarot. Because of that, we considered that the ads were unlikely to have more influence over those viewers who believed in Tarot than those who did not. We therefore concluded that the ads did not exploit cultural beliefs or traditions about gambling or luck.
On that point, we investigated ads (c), (d) and (e) under BCAP Code rule 17.4.1 17.4.1 exploit cultural beliefs or traditions about gambling or luck (Gambling), but did not find them in breach.
Action
The ads must not appear again in their current form. We told Skill on Net Ltd to ensure that future ads did not misleadingly imply that using the Hot or Cold feature could predict or influence future success and did not encourage gambling that was socially irresponsible or could lead to financial, social or emotional harm.
