Are Call TV quiz shows lotteries?
22. The Gambling Commission acknowledges that some
Call TV quiz shows may fall to be regarded as lotteries
under current law; but it observes that this could only be determined
by pursuing a case through the courts, an exercise which would
take considerable time and resources and which would not be resolved
before implementation of the new Act in September. The Commission
has concluded that, overall, there is little to be gained in pursuing
such a case, and it will concentrate instead on the implications
of the 2005 Act.[43]
23. The Gambling Act 2005 defines as a lottery any
"arrangement" under which:
— Persons
are required to pay in order to participate in the arrangement;
— In the course of the arrangement one
or more prizes are allocated to one or members of a class; and
— Either the prizes are allocated by a
process which relies wholly on chance (a "simple lottery"),
or, if there is a series of processes, the first of those processes
relies wholly on chance ("a complex lottery").
The Gambling Commission's view is that Call TV quiz
shows "have many of the attributes of what are defined as
'complex lotteries' in the new Act".[44]
If, however, the shows can demonstrate that viewers do not have
to pay to take part, they may escape classification as a lottery
and be treated instead as a "free draw" and be exempt
from statutory control.[45]
Schedule 2 to the Act recognises provision of a means of free
entry to a competition as being enough to qualify an arrangement
as not requiring payment. The cost of postage, making a telephone
call or using any other method of communication is not treated
as a requirement to pay if the communication is at a normal rate
(as opposed to premium rate).
24. In August 2006, the Gambling Commission issued
a consultation paper on the implications of the new law in distinguishing
between lotteries, prize competitions and free draws.[46]
Responses indicated that some, if not all, Call TV quiz show operators
would probably seek to argue that they were not operating "complex
lotteries" as a free entry route using websites was available.
The Commission was cautious but thought it likely that at least
some of the programmes would meet the "free entry" criteria.
One or two operators, however, showed an interest in being licensed,
so that their programmes would operate as lotteries.[47]
25. It must be remembered that providing a free entry
route via a website would not automatically enable a Call TV quiz
show to escape the definition of a complex lottery under the Act.
Web entry routes might fail to meet the "free entry"
criteria because the routes were "user unfriendly" and
failed the test of being no less convenient than entering by paying,[48]
or because they were not publicised in a way likely to come to
the attention of each potential participant.[49]
It is also open to challenge whether shows can justly claim that
each participant does indeed have "a choice whether to participate
by paying or by sending a communication". Susan Marks, a
Social Policy Officer at Citizens' Advice, told us that there
were concerns about whether the internet entry routes would be
an option available to Citizens' Advice Bureau clients. [50]
The most recent statistics published by Ofcom show that only
28% of consumers aged over 65, and 35% of those in socio-economic
groups D and E, have access to the internet.[51]
Only 25% of consumers with annual incomes up to £11,500 have
internet access at home, compared with 88% of those with incomes
over £30,000 and a national average of 61%. ICSTIS is currently
considering whether the free web entry routes are genuine equivalent
alternatives to paying for a premium rate service call.[52]
The free entry issue also formed part of the Gambling Commission's
recent consultation exercise on prize competitions and free draws
(see above); and the Deputy Chief Executive of the Gambling Commission
told us that if internet access was as low as had been suggested,
there was a real question as to whether people genuinely had a
choice.[53] We understand
that ICSTIS's conclusions are imminent, and we urge the Gambling
Commission to publish its own findings as soon as possible.
26. It is intensely frustrating that uncertainty
about whether programmes should or should not be regulated as
lotteries under current law is unlikely to be resolved and that
shows' status under current law will not be determined. For
understandable reasons, the Gambling Commission has taken a policy
decision that the trouble and expense of testing the issue in
the courts - and the likelihood that cases would not be resolved
before new legislation comes into force - means that there is
little to be gained from doing so. With some regret, we agree
with the Gambling Commission that there is little point in pursuing
in the courts cases concerning the status of Call TV quiz shows
under legislation which is soon to expire.
27. The Department told us that "ultimately
only the courts will be able to decide whether or not certain
Call TV quiz services constitute lotteries under the new Act".[54]
We hope that the Gambling Act 2005 will prove to be a
more useful tool than current legislation in clarifying the status
of Call TV quiz shows. We do not take this for granted, as the
new Act was drafted before Call TV quiz shows - very much a hybrid
creation - became established in broadcasting schedules. We believe
that fresh uncertainties in relation to Call TV quiz shows will
arise under the new law and will be dispelled only once case law
has been established.
28. We note the argument advanced by PROMIS, a counselling
centre in London experienced in treating people addicted to gambling,
that engaging in the Call TV quiz process "is effectively
a form of gambling, where the individual viewer risks the cost
of the call in order to win the jackpot". PROMIS concluded
that it was "largely chance, not personal merit, which is
rewarded".[55]
We believe that Call TV quiz shows generally look and feel like
gambling, whether or not they will fall within the definition
of gambling under the Gambling Act 2005. The chance element, in
whether or not a caller gets beyond the first stage, is an integral
part of the format: it generates repeat calls and further revenue.
Without it, we doubt that the format would be as attractive to
broadcasters. We do not see why, just because a free entry route
might exist, those who pay a premium rate to enter a game in which
the first element is entirely one of chance are doing anything
other than gambling. Had the Call TV quiz show format been widespread
when the Gambling Bill was being drafted and debated, we would
have recommended that the definition of gambling be drawn so as
to cover viewers who pay to participate in such shows.
29. Attention to the status of Call TV quiz shows
under the Gambling Act appears to have focussed entirely on whether
or not the shows are likely to be operating as complex lotteries.
It seems to us, however, that Call TV quiz shows may well fall
within the definition of "gaming" under the Act: "playing
a game of chance for a prize", including a game "that
involves both an element of chance and an element of skill".[56]
There may be scope for debate as to whether a participant whose
call is not connected (as is the case for the majority of participants)
ever gets a chance to actually "play a game" within
the meaning of the Act. If Call TV quiz shows are indeed gaming,
they will be subject to an entirely different set of regulatory
controls. This issue has not been raised in any evidence to our
inquiry and we cannot comment further; but it seems to us that
Call TV quiz shows should constitute gaming under the Gambling
Act 2005, and DCMS and the Gambling Commission should consider
this as a matter of urgency.
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