Ad description
A post on Midnite’s X page, published on 25 May 2025, featured an AI generated video depicting footballer Trent Alexander-Arnold giving a speech. Text on the video stated “Midnite. *ai-generated parody*. A caption on the post stated “Trent Alexander-Arnold’s farewell speech to the Liverpool players”. The Midnite X page replied to their own post, stating “AI-generated parody […] All voices / likenesses are fictional […] Not endorsed or real players/managers […] Safer gambling: 18+ […] BeGambleAware”.
Issue
Two complainants, including a researcher from the University of Bristol, challenged whether the ad included a person or character who was likely to be of strong appeal to under-18s, and therefore breached the Code.
Response
Dribble Media Ltd t/a Midnite said the ad featured an AI-generated parody video of a fictional farewell speech by Trent Alexander-Arnold, following his widely publicised departure from Liverpool. They acknowledged that Mr Alexander-Arnold was of ‘high risk’ in being of strong appeal to under-18s.
Midnite believed the ad was editorial in nature and therefore considered it was not a marketing communication. They said the post did not contain any odds, inducements, calls to action, product references, or links to the Midnite website. They said the post was intended to be a piece of content on topical football humour, not as a marketing communication intended to ‘sell something’. They said the post was not designed to drive traffic to their platform or encourage engagement with any gambling-related product, service or promotion. They believed consumers who engaged with the post understood that it was intended to be a light-hearted, editorial-style post.
They believed the inclusion of the Midnight watermark on the video did not make the post an ad, because they said it appeared by default due to it being an organic post from a brand’s verified account. They also believed the inclusion of an age disclaimer and social responsibility message did not mean that the post was an ad. They said the inclusion of that information was done as a voluntary precaution and was consistent with the industry’s broader practices. They believed that considering an age disclaimer and safer gambling messaging as a trigger for bringing content into the ASA’s remit risked discouraging their consistent use.
They said they had removed the ad in question and had paused the publishing of similar posts.
Assessment
Upheld
The ASA first considered whether the post was advertising and therefore fell within the scope of the CAP Code. Paragraph I(h) of the Scope of the Code stated that the Code applied to “advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that [were] directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist[ed] of direct solicitations of donations as part of their own fund-raising activities”.
The post appeared in non-paid-for space online under Midnite’s control. We therefore considered whether it was directly connected with the supply of betting services.
The post was published during the period in which Trent Alexander-Arnold was being transferred from Liverpool to Real Madrid. We understood that Midnite offered bets on football matches. The post also included the 18+ and BeGambleAware messaging. The post featured the advertiser’s logo embedded into the video, which could be seen throughout the whole video. We considered the purpose of the post was to promote the brand through creating a viral video and, in light of the prominent Midnight branding and Gambling Aware message, that it had featured a direct reference to gambling. It was therefore directly connected with the supply of betting services and was an ad falling within the scope of the CAP Code.
We then considered whether the ad breached the Code.
From 1 October 2022, the CAP Code stated that marketing communications for gambling products must not be likely to be of strong appeal to children or young persons, especially by reflecting or being associated with youth culture. They must not include a person or character whose example was likely to be followed by those aged under 18 years or who had strong appeal to those aged under 18.
We considered that it would have been acceptable for gambling ads which featured individuals likely to be of strong appeal to children to appear in a medium where those aged under 18, for all intents and purposes, could have been entirely excluded from the audience. That would apply in circumstances where those who saw the ad had been robustly age-verified as being 18 or older. We understood there was not currently a prescribed standard of age verification under UK law, and that X’s age-verification practices were in line with industry standard and the practices of other social media platforms. Our consideration was limited to whether the ad was in breach of CAP Code rule 16.3.12 by being of strong appeal to under-18s and we did not assess or have any comment on X’s compliance with the legal requirements that were due to come into force in July 2025 under the UK’s Online Safety Act, which was a separate matter.
We recognised that X had protection policies in place for under 18 users. In particular, we understood that organic content generated from a certified gambling account on X would not be recommended or promoted to known under-18s through the ‘For You Page’ (FYP) mechanic, where users were recommended content by X’s algorithm from accounts they may not follow. We understood therefore that X did not allow registered under-18s to follow gambling operator accounts.
However, at the time the ad appeared, we understood that X, as with other media platforms, relied on users to self-verify their ages on signing up to the platform, and therefore under-18s could falsely claim they were over 18 when creating an account. We accepted that X had an additional measure in place, whereby third parties could report accounts that they believed were underage. Whilst helpful, we considered that measure was unlikely to effectively identify all accounts that had falsely claimed to be over 18.
Ofcom’s most recent report from April 2024 (Children and parents: media use and attitudes) showed that whilst 6% of respondents (namely their parents) said that their child used X, that figure represented the proportion of usage amongst all 3- to 17-year-olds. The report showed that the figure rose to 10% of 12- to 15-year-olds,17% of 16- to 17-year-olds, and 19% of 16- to 17-year-old boys.
We understood that an Ofcom report from November 2023 (Online Nation 2023) indicated that the “UK online 15–17 year olds social media by reach in May 2023” for X was 1.4 million (60% of 15- to 17-year-old online users).
An Ofcom report from 2022 (Children’s Online User Ages Quantitative Research Study) (sample based on quota of 1,000 social media users aged 8 to 17) indicated that 20% of 8- to 17-year-olds who had social media, used X. That same report indicated 32% of 8- to 17-year-olds with at least one social media account had a registered user age of 18 or above.
The 2022 report also stated that “despite most platforms having a minimum age of 13, the research suggests that 6 in 10 (60%) children aged 8 to 12 who use these platforms are signed up with their own profile”.
Given that evidence, we considered it was likely that there was at least a significant number of children who had not used their real date of birth when signing up to X and were able to see and access content intended for those aged 18 or older, meaning they could view content from verified gambling accounts, both from ‘following’ that account or through the X FYP functionality. We recognised that was an issue across social media platforms generally, and not just in relation to X.
We noted the CAP Guidance “Gambling and lotteries: Protecting under-18s” stated that football was an activity in which a very significant proportion of under-18s participated directly on a frequent basis and had a general interest in through following professional teams and players across a variety of media. There was also a highly developed infrastructure around organised participation and the sport had an exceptionally high media profile including popular, dedicated media for under-18s. Those who played at an elite level were likely to appeal strongly to children and young persons.
The guidance also stated that UK footballers who played for top clubs were considered high-risk in terms of how likely they were to be of strong appeal to under-18s.
The ad included an AI depiction of Mr Alexander-Arnold, who at the time the ad was published, was a player at Liverpool and would be well known to the fans of that club, and also to those who followed Premier League football more generally, including children. We also considered that he would be very well known for being a ‘star’ player, who also played for the England national football team. Although the imagery used was AI-generated, we considered it was a depiction of Mr Alexander-Arnold, which consumers would clearly recognise as being him. We therefore considered that the imagery, due to the ‘character’ it depicted, was likely to be of strong appeal to under-18s.
For those reasons, we concluded the ad was irresponsible and breached the Code.
The ad breached CAP Code (Edition 12) rules 16.1, 16.3 and 16.3.12 (Gambling).
Action
The ad must not appear again in the form complained of. We told Dribble Media Ltd t/a Midnite not to include a person or character who had strong appeal to those under 18 years of age.
