This article appeared in the August 2017 issue of Club Life.
The Club Law article published in August 2015 considered some of the risks for clubs relating to gaming machine advertising. This included a brief consideration of the limited circumstances in which a club may send promotional material containing gaming machine advertising to a member of the club. This article considers the issue in further detail.
Overview of the legal requirements
The Gaming Machines Act prohibits clubs from publishing or causing to be published any gaming machine advertising. The definition of gaming machine advertising is very broad and includes any publicity that promotes the playing of gaming machines on the premises of a club.
However, the Gaming Machines Regulation contains an exception to the gaming machine advertising prohibition. In effect, a club cannot send any promotional material containing gaming machine advertising to a member of the club, unless:
- the member has expressly consented to receiving the promotional material and that consent has not been withdrawn;
- the promotional material contains a statement to the effect that player activity statements are available on request in accordance with the Gaming Machines Regulation;
- the promotional material contains a problem gambling notice in accordance with the Gaming Machines Regulation;
- the promotional material contains a statement to the effect that the member may at any time withdraw his or her consent to receiving any further promotional material;
- the promotional material includes information or advertising apart from gaming machine advertising;
- the club keeps a written record of the member’s consent to receiving the promotional material; and
- the member is not a participant in a self-exclusion scheme with the club.
Providing a club complies with the above listed requirements, the club can send the promotional material to the member electronically or by post.
Express consent to receiving promotional material
It is common for clubs to ask what is required for a member to give their express consent.
Express consent requires a member of the club to “opt in” to receiving promotional material containing gaming machine advertising. This requires the member to take a positive step to provide their express consent. For example, a member may give their express consent by signing a statement that they agree to receive the promotional material or by ticking a box on the club membership form saying the member agrees to receive the promotional material.
A club cannot obtain a member’s express consent by requiring the member to “opt out” of receiving promotional material, or by pre-checking a consent box on a form signed by a member. For example, a club cannot require members to tick a box to confirm they do not give their express consent and a club cannot create an electronic membership form that contains a default setting whereby the consent box is automatically ticked (that is, the member must not be required to remove the tick from the consent box).
A member may withdraw their express consent at any time. If a member does not withdraw their express consent, the consent of the member will remain valid until the end of the member’s current membership period. This requires the club to obtain a member’s express consent each time the member renews his or her membership with the club. For example, if a member has applied for a five-year membership period, the club will be required to obtain the member’s express consent again at the end of the five year membership period (unless the member withdraws his or her express consent in this period).
A club cannot send any promotional material to a member after the member has withdrawn their express consent or (if the member has not withdrawn their consent) after the member’s current membership period ends. In these circumstances, the club must reobtain the member’s express consent.
A word of caution
A club must strictly comply with the requirements of the Gaming Machines Act and Gaming Machines Regulations in respect of gaming machine advertising. A failure to comply with the advertising requirements is an offence. Each offence carries a maximum penalty of $11,000.
Accordingly, clubs should exercise a great deal of caution before sending any promotional material containing gaming machine advertising to a member of the club. In this regard, this article is only intended to provide clubs with a broad overview of the exception in the Gaming Machines Regulation. Clubs should not take this article as legal advice. Clubs should seek formal legal advice in respect of any matter considered in this article.
For more information contact Bruce Gotterson on b.gotterson@pigott.com.au