Spain: Draft Royal Decree on Commercial Communications of Gambling Activities Could Severely Limit Advertising Language

A new draft Royal Decree may remarkably limit the ways in which gambling and games of chance can be advertised in Spain. The draft intends to implement the European Commission Recommendation of July 14, 2014, which urged Member States to integrate into their national regulations a number of principles to ensure an adequate level of consumer protection with a view to realizing one of the main objectives of the European Commission’s Action Plan on Gambling Services. The proposed new Royal Decree strongly emphasizes youth protection and purports to restrict any advertisement for games of chance even “indirectly” addressed to minors. Further new requirements concern mandatory wording and labeling requirements for advertisements, as well as disclosure obligations in connection with sponsorship.

Legislative Framework

The Spanish Gambling Act (Law 13/2011, of May 27th, on the regulation of gambling activities – hereinafter referred to as “SGA”) established the legal framework for carrying out gambling activities statewide. The draft of Royal Decree adds detailed rules to the SGA provisions on launch or performance of advertisements, promotional activities, sponsorship and any other form of commercial communications regarding gambling opportunities, as well as at fostering responsible gambling policies for consumers’ protection.

The Royal Decree will apply to any entity covered by the SGA, as well as those who issue commercial communications, such as audiovisual media services providers or information society services providers (including online game operators, websites and social networks). The scope is not limited to main actors, but extends to intermediaries such as advertising networks, advertising agencies or those who provide support/development services to the abovementioned actors.

Youth Protection at the Core of the Draft Royal Decree

The proposed text is based on the principles of identification of the advertisers and commercial communications, of truthfulness, of social responsibility, of responsible gambling, and the principle of protection of children and young people. All these principles would be mostly in line with those proposed by the European Commission on the aforementioned recommendation.

The principle of protection of children and young people stands out because of the level of detail it is accorded in the text of the draft, governing and affecting the majority of the measures. This principle seeks a ban on any commercial communication, either directly or indirectly directed to minors, which is also consistent with what had been proposed by the European Commission about the compulsory placement of a warning in every single gambling commercial communication stating the prohibition for minors to take part on gambling activities.

Clarity in Advertising and Sponsorship

The draft also particularly emphasizes that commercial communications must be easily recognizable as such by the addressees by stating that every commercial communication needs to include the word “advertising”. The legislator therefore includes an obligation which was stated –already repealed though – by Law 34/2002, of July 11th, on the Information Society Services and E-Commerce (LSSI). The draft also states that, in order for the operators to carry out commercial communications, gambling authorities shall grant enabling titles/licenses for them.

Following the aforementioned principles the draft further develops the section regarding sponsorship activities. One of the main goals pursued by the Spanish legislator regarding sponsorship activities is to provide them with more transparency. Therefore, it is required that the sponsorship relationship between the sponsor and either the operator or the goods/services involved should be direct and “self-evident” for consumers.

Promotional activities are also subject to regulation, according to the draft, as it established that these commercial communications will be allowed, for instance, to offer the products, to offer bonuses, as long as the activities established in Article 13 are avoided. Article 13 provides for the prohibition that misleading perceptions about the gambling activity are purposefully conveyed to consumers

Restrictions on Digital Communication

Alongside traditional advertising channels, gambling activities include commercial communications carried out via electronic media (web sites, email communications). In this regard it must be noted that commercial communications are prohibited for people who have exercised the “self-exclusion” right. Likewise the commercial communications or advertisements of gambling activities in social networks are also forbidden if the owner of that profile is a minor. Any other commercial communication shall be recognizable as such and it should allow its recipients to oppose to the sending of future communications through the same means.

Prevention Mechanisms

The draft also establishes certain mechanisms for the prevention, awareness and control in relation to the content of the commercial communications. Within the so-called “prevention” mechanisms are included the reporting requirements under which it is established the need to incorporate a section named “responsible gambling” in web pages or applications, and by clicking on that quote the user is redirected to another screen where the information stated in Article 22 of the draft must be included.

The control mechanisms envisaged by the draft are also remarkable to the extent it is required that operators establish mechanisms to detect disordered gambling behaviors in the users of the gambling activities. These systems include the right of voluntary suspension, the assistance on responsible gaming, as well as the allocation in certain cases of awards and funds for purposes related to the prevention of those behaviors.

The draft is not yet final and still the subject of political and legal debate. In any event, the evolution of the draft should be closely watched.