The Supreme Court limits gambling advertising

The Supreme Court limits gambling advertising

Context of gambling regulations

The regulatory framework existing at the time when Royal Decree 958/2020 of November 3 on commercial communications of gambling activities was approved must be taken into consideration, as this framework is not only constituted by Law 13/2011 of May 27 on the regulation of gambling but also by a set of provisions both at the European Union level – Commission Recommendation 2014/478/EU of July 14, 2014, which urges Member States to take measures for the protection of consumers and users of online gambling services and the prevention of online gambling among minors- and at the national level, such as Law 34/88 of November 11, General Advertising Law, Law 7/2010 of March 31, General Audiovisual Communication Law, Law 34/2002 of July 11, Information Society and Electronic Commerce Law.

Limitations and prohibitions of the law

Royal Decree 958/2020 establishes certain material limitations for the performance of advertising, affecting intrinsic aspects of the advertising activity without the necessary legal coverage.

The freedom of enterprise is subject to the reservation of law, being totally legitimate the intervention of the authorities for the regulation of the exploitation of gambling advertising for social policy issues, protection of minors, prevention of tax fraud and money laundering, as well as for reasons of general interest.

The strong prohibitions on internet gambling advertising that the regulation establishes are such as restrictions on television, radio, YouTube and video sharing platforms in the time slot from one to five o’clock in the morning. The Royal Decree 958/2020 also vetoes the advertisements of bookmakers during sports broadcasts, in addition to putting an end to the sports sponsorships of these brands. 

The Ruling does understand that Royal Decree 958/2020 has legal coverage in the determination of the time slots allowed for the broadcasting of commercial communications of different types of games. Likewise, the Court understands that the combination between the prohibition of participation of minors in games of chance and the time restriction for commercial communications of these same games is sufficiently covered by the regulatory structure, specifically by article 7.2. of Law 7/2010 and Law 13/2011, of May 27, on the regulation of gambling.

How does this change affect gaming companies?

The Supreme Court has annulled the limitations that bookmakers were facing when making promotions for new customers or the appearance in this type of advertisements of people or characters with public relevance or notoriety.

Companies will have to pay special attention to the dissemination of commercial communications as it understands that the regulation lacks legal coverage as regards the generalized prohibition to disseminate commercial communications through information society services, unless this type of communications are inserted in the web page or application dedicated to gambling.

The great turning point in this situation has been the protection of minors, since it is not possible to limit advertising with such a general scope that impacts the whole media in the event that this advertising on gambling may interfere with the privacy of minors.

The obligation for companies to include in commercial communications a message on the harmful effects derived from gambling is established and, as regards the development of the conditions and limits of the promotional activity to customers, there is no inconvenience in establishing provisions that imply the technical development and specification of the provisions on this point already contained in the law.

The limitations imposed on the gaming operators are definitely clarified when the user who participates is legally incapacitated or by judicial decision, such participation is prohibited by the legal provision of article 6 of the Gaming Law.

In short, the Court dismisses the appeal with respect to the other challenged precepts on the grounds that they have sufficient legal coverage and the limitations that are already established by the law are proportional to the principle of the reservation of the law which is applicable to the companies.