What is the current framework on the advertising of gambling activities in Spain after the Supreme Court's partial annulment of certain restrictions?

Following a Supreme Court ruling, the regulatory framework for commercial communications in the gambling sector in Spain was substantially modified.

In response to an appeal filed by an industry interest group, the high court annulled several provisions of Royal Decree 958/2020, which imposed significant restrictions on the advertising and promotion of gambling activities. This decision has notable implications for gambling operators and the parties involved in the serving of advertisements regarding this industry.

Royal Decree 958/2020 established strict limitations on the advertising of gambling activities, including absolute prohibitions on certain channels and time slots, and restricted promotions aimed at attracting new customers. These restrictions had elicited criticism from industry operators, who argued that such measures disproportionately affected their business activity and lacked sufficient legal basis.

Reasoning of the Supreme Court on the annulled provisions

The Supreme Court annulled the restrictions introduced by the following articles of Royal Decree 958/2020. They were found to lack the necessary legal coverage and were deemed disproportionate, as they generically affected the ability of gambling operators to reach potential customers, exceeding the limits permitted by the principle of proportionality:

• Article 13 (paragraphs 1 and 3): This article prohibited promotions aimed at attracting new customers and limited commercial communications of promotions only to existing customers. 
• Article 15: This provision prevented the appearance of persons or characters of public relevance or notoriety in commercial communications of gambling activities.
• Article 23 (paragraph 1): This paragraph imposed a general prohibition on the dissemination of commercial communications through information society services, unless they were inserted on websites or applications specifically dedicated to gambling.
• Article 25 (paragraph 3): The provision limited commercial communications on video-sharing platforms, allowing their dissemination only on accounts or channels whose main activity was to offer information about gambling activities and under certain conditions.
• Article 26 (paragraphs 2 and 3): These paragraphs restricted advertising on social networks, allowing commercial communications only to persons who were already customers or who specifically accessed accounts related to gambling activities. 
   

The Supreme Court emphasised that, although the protection of minors and the prevention of gambling addiction are legitimate and necessary objectives, the imposed restrictions must be supported by a piece of legislation with a law-like status (which is not the case with Royal Decrees) and be proportional to the pursued aim. The annulled limitations did not meet these requirements, as they established broad and general prohibitions without clear legal authorisation and without considering less restrictive measures that could achieve the same objectives.

The court also pointed out that absolute prohibitions affect the essential core of the freedom of enterprise and advertising activity, rights recognised in the Constitution. Therefore, any restriction in this area must be justified and delineated by the Spanish Parliament, and cannot be established autonomously by administrations without the necessary parliamentary supports.

Limitations maintained

However, the Supreme Court upheld other provisions of the Royal Decree that establish time and content limitations on the advertising of games of chance, especially in audiovisual media and during time slots with reinforced protection. These measures are considered adequate and proportional to protect minors and vulnerable groups, and find support in existing legislation, such as the General Law on Audiovisual Communication and the Gambling Law.

Despite the annulment of limitations in the digital sphere, the court reaffirmed that advertising of gambling activities remains a sensitive matter. Among many other things, operators are still required to obtain the necessary authorisations, as stipulated in their enabling titles, before engaging in any advertising practices, and intermediaries in the serving of advertisements are obliged to verify these authorisations.

Implications for the sector and legislative response to this ruling

The partial annulment of Royal Decree 958/2020 obliges a rethinking of the regulatory framework and the search for solutions that harmonise the protection of general interests with respect for the rights of operators.

This ruling also highlights the need for more precise and coherent regulation in the field of advertising of gambling activities. The coexistence of different norms and the incorporation of subsequent legislative modifications have generated uncertainty and debates about the application of restrictions. It is essential that future normative initiatives address these challenges and establish a clear framework that will allow operators to fulfill their obligations without detriment to their business activity.

Following the partial annulment of Royal Decree 958/2020, a draft bill has been introduced proposing amendments to the Gambling Law to provide a solid legal basis for restrictions on the advertising of gaming activities, effectively re-introducing the restrictions that were initially imposed by Royal Decree 958/2020. With these proposals, the draft bill seeks to address the Supreme Court's observations, ensuring that advertising restrictions are properly backed by a law-like piece of legislation and are proportional to the objective of protecting vulnerable groups.

Osborne Clarke comment

The Supreme Court's decision represents a milestone in the regulation of the advertising of gambling activities in Spain. Operators and other sector agents should carefully analyse the changes derived from this ruling and adjust their commercial strategies accordingly.

At the same time, regulatory authorities face the challenge of designing a normative framework that guarantees consumer protection and fair competition, avoiding unnecessary or disproportionate restrictions that could negatively affect the market.