Are TV’s games of chance safe? Don’t bet on it

Here is a thought: If you need a gambling licence to make a TV game show based on chance not skill, what licence will you need for a murder mystery?

The first part of the question is one that is exercising the minds of British television producers and the UK Gambling Commission. It led the British tabloid the Mail on Sunday to run with the head line “Hit game shows like Deal or No Deal and Play Your Cards Right could be forced off the air after gambling watch dog claims that they break the law”.

Now there’s a headline to send a frisson of withdrawal symptoms through a good part of the UK viewing public and raise interesting issues in Australia, as the media industries digest the Convergence Review and three or four other riparian reports.

The issue for the Gambling Commission is whether the outcome of the game shows is purely based on chance or whether there is a smidge of skill involved … and if so, how many smidges, and should the producers hold a gambling licence?

For another UK game show, ITV’s Red or Black?, the element of skill is so close to zero that it, too, is caught up in the investigation. Red or Black?, with a budget of £15 million, is the biggest budget game show in TV history. It was created by Simon Cowell, a British TV producer and TV talent show judge from the quip and insult school of assessment.

Like The Voice, Red or Black? is constructed in chapters, and like The Voice it was programmed in blocks over successive nights. Red or Black? winnows a Wembley arena-size audience in round one to one single millionaire by show’s end using a series of random selections methods, one involving an electronic roulette wheel.

Unfortunately, it was not quite a run-away rating success for all the money spent and there are doubts about further seasons. The fact that the winner of the first outing of Red or Black?, Nathan Hageman, had a conviction for assaulting a woman did not help, and the Gambling Commission’s interest may force significant changes to the format.

The question of a licence may be a vexation and the requirement is more than trivial in its consequences.

If the UK edition of Deal or No Deal were judged to be televised gambling, it could be disastrous for the show. Deal or No Deal airs at 5pm to an audience of 4 million. If a gambling program, it would have to run after 9pm. Some of its present advertisers and audience would be lost, the producers would be up for steep licence fees, be “fit and proper” persons to hold the licence, and also submit to further regulation and reporting of their business activities.

The situation for the Australian edition of Deal or No Deal is a little different.

First up, the UK is one jurisdiction when it comes to gambling regulation. Each Australia state and territory has its own gambling laws and, as in so many other matters, legal and otherwise, there is a lack of uniformity even in things like the unlicensed playing of two-up on Anzac Day.

According to Jamie Nettleton and Jessica Azzi of law firm Addisons, Australian game shows are “generally classified as trade promotions”, and only in some states and territories are trade promotions subject to government permits, if the promotion involves an element of chance. However, if the promotion involves skill rather than chance, then, generally, no permit is required.

This is a clearer test of a gamble under Australian laws.

Does (a) the game involve chance and a risk of failure; (b) has the player themselves provided a consideration, a stake; and (c) is the game to be played for something of value to the players? If you score all three then it’s a gamble. This looks like the get-out clause because the contestants in Deal or No Deal and other TV games shows have no initial monetary stake in the game, though they soon acquire one.

Dr Mark Griffiths, Professor of Gambling Studies at Nottingham Trent University, has been pushing the Gambling Commission to look at TV games shows for a long time. Dr Griffith told the Mail on Sunday that “for some years, there has been a blurring between gaming and gambling”.

He argues that “contestants in the show are effectively gambling. The show’s producers will say that people on it are not putting up any of their own money. But once they are on it, they have been given money and it’s their money they are gambling on”.

Curiously, the UK legislation does not include the prior condition of a stake or “consideration” for gambling to have taken place, so its absence amounts to no defence.

Now, some good news.

Fans of the Australian version of Deal or No Deal will be relieved to know that the show is produced in Victoria, where it is regarded by the regulator as a game of skill. Arguably, however, shows like Wheel of Fortune may have to check their format.

The UK Gambling Commission concern has a second focus. It is one that’s arisen here about sports betting, especially the display of line odds at football matches, and the so-called casual reference to odds by football commentators.

The concern here and in the UK is that such television exposure to gambling, especially to young and susceptible audiences, normalises it as an activity for all ages, glamourises it, and holds out the promise of cost-free fun with the prospect of riches. Such promises are held to lead some people to addition. The exposure gives it a legitimacy that sections of the community regard as unwarranted, others as undesired.

The same applies to opportunities for gambling on the outcomes of any of the flood of talent show on television today. An email from a notable bookmaker hits your correspondent’s screen daily with a complete set of odds on success or failure for every contestant and every team in The Voice or Australia’s got Talent.

In addition to concern about the normalisation of gambling to young and susceptible audiences, betting on TV talent shows results raises other concern.

They range from the outright corruption of the adjudication of winners to the compromising of the reputation of individuals working on the production and the possibility of crews inadvertently being accessories to the commission of crimes and then subject to prosecution.

In addition, talented entrants corruptly denied success could sue producers and judges for damages, and generally bring new opportunities for litigation to a business that is largely free of litigious angst (James Warburton & Network Ten vs Seven Network aside).

So while we consider the future regulation of the convergent media, the media industry and the government might consider whether gambling on the outcome of television talent contest is something we want as part of the business.

Mean time, the UK Gambling Commission had been planning to issue formal written advice for TV games show producers by the end of April, but Laura McCaughey, Corporate Affairs Manager for the Commission, told Screen Hub that:

“The Commission has been, and is still, consulting with relevant stakeholders and has decided that an advice note on this topic at this stage would not be the most appropriate way to help broadcasters and producers of television game shows to comply with the Gambling Act. As a result we have removed reference to the note from our forward look on the website.”

 

Dr Vincent O’Donnell writes the weekly column March of the Moguls that appears in Screen Hub and produces Arts Alive, the national arts and culture current affairs radio program. He is an honorary fellow of RMIT University School of Media & Communication, and the University of Melbourne’s School of Historical Studies.