Amendment of the Spanish Gambling Law 13/2011
The Spanish Official State Gazette (B.O.E.) of 3 November has published Act 23/2022, that modifies the Gambling Regulation Act 13/2011, of 27 May (the “Act”) However, it must be stated that a significant part of this Act (the First and Second Final Provisions, with more extensive text than the body of the Act itself), does not refer to the Gambling Regulation Law 13/2011 (“Gambling Law”), but rather refers to Royal Decree- 1/2007, of 16 November, that approved the text of the General Consumers and Users Protection Act and other complementary laws (hereinafter, the “General Consumers and Users Protection Act”), which represent modifications that have little to do with the Gambling Law, and that were incorporated during the parliamentary hearing of the bill, which constitutes a tactic that many members of parliament understandably have complained about.
Hereinbelow, we shall analyse only the precepts that refer to the amendments of the Gambling Law, although we shall see that, again, some of said modifications have nothing at all to do with the Gambling Law, but rather they “adhere” to the Gambling Law in a technically contrived way.
In light of the foregoing, we are not facing a substantial amendment of the Gambling Law as the modifications basically constitute “patches that aim to sew together and iron out some legislative seams” in relation to certain aspects that had not been properly addressed. Other more important modifications to the Gambling Law have taken place prior to this most recent reform. For example, Act 3/2013, that extinguished the primitive creation and regulation of the never established National Gambling Commission; or the most recent Act 11/2021, that already incorporated certain precepts related to the fight against fraud.
Initial content of the bill. “Legalisation of the SIGMA Service”
The bill initially approved by the Government and submitted to Parliament refered to a single and specific substantial issue: the legal regulation of the so-called “Global gambling market research service (SIGMA)”. This is a true “Service” of the Public Administration, in the formal sense of the term, created and assigned to the Directorate-General for the Regulation of Gambling (“DGOJ”) for the management of a computer tool. Said function already operated within the Sub Directorate-General for Inspection of the DGOJ, as set out in the “2018 Gambling Activity Supervision Strategy document”. The assignation of functions does not normally require a formal act, and does not usually need to be debated at Parliament. The functions are usually assigned to the administrative body and the civil servants materially implement and execute said functions.
This Service has been functioning normally to instruct the activities of the CONFAD (Spanish National Commission to Combat the Manipulation of Sports Competitions and Betting Fraud) that is the inter-departmental body created by Order PCI/759/2019 of the Ministry of the Presidency, Relations with Parliament and Equality. This Commission, in which the DGOJ participates, is fundamentally at the service of the police authorities to help with the investigations of gambling and betting fraud, that normally have criminal implications. Furthermore, the foregoing Commission also includes representatives of the Directorate-General for Sports, the National Sports Council, the Directorate-General for the Police, the Directorate-General for the Spanish Civil Guard, as well as representatives of the gambling sector in Spain.
By reason of the significant amount of data involved, it was necessary to establish a solid legal justification for said data processing (instead of merely public interest and/or legitimate interest); Accordingly, it has been unequivocally established that the DGOJ is the data controller for said data. Furthermore, the bodies and entities that collaborate with SIGMA have also been listed: The National Sports Council, the sports federations, the professional leagues and gambling and betting operators. From the perspective of the data protection regulations, the foregoing entities and institutions are classified as data processors, that is to say, they provide services to the DGOJ, however with a particularity, they may only have access to the data that each of the respective bodies and entities has provided. In other words, the National Sports Council, for example, may not access the data provided by the gambling and betting operators or vice-versa. The DGOJ is solely and exclusively responsible for centralising all of the information that shall, subsequently, be provided to the State Security Forces and Organisations, and the Autonomous Region police forces. The foregoing data processing expressly excludes the processing of special data, such as personal data that reveals ethnic or racial origin, political opinions, religious or philosophical convictions, or trade union affiliation, genetic or biometric data, and health data, or data related to the sexual orientation or sex life of persons, as well as any other data that is considered to be irrelevant or unnecessary. The gambling or betting operators must take special care to avoid the disclosure of data related to responsible gambling because, in our judgement, said data may be considered to constitute health-related data. It has been established that the maximum data processing period (and storage) of said data by SIGMA is that of one (1) year.
The foregoing basic legal regulation of the database was the initial and single objective of the bill submitted to Parliament, and was approved as submitted, technically including a Ninth Additional Provision to the Gambling Law, and it is noteworthy to state that:
- Currently, an Agreement already exists between the DGOJ and the National Sports Council (B.O.E. of 30/08/2021), for the “disclosure” of the aforementioned data, by reason that without the collaboration thereof, the implementation of the objectives therefrom would be impossible.
- Said tool is materially stored and hosted at the DGOJ, and is inserted in the Gambling Law, that constitutes the principal regulation applicable to this economic sector, however the tool could be stored at any other Department related to sports, or with the State Security Forces and Organisations that use said tool.
Additional content of the bill initially submitted to Parliament
The other regulation contained in the bill that was submitted to Parliament was a brief addition of a function of the DGOJ to be included in the objectives set out in Section 21 of the Gambling Law. The legal function proposed, and finally approved, consists of:
“protecting groups of players at risk by assessing the efficacy of the measures implemented for responsible or safer gambling and betting aimed at said groups that, in compliance with the regulatory obligations applicable, must be implemented by the gambling and betting operators”.
By reason of the ambiguous and redundant definition of the foregoing objective, taking into account the other functions of the DGOJ, inherited from the National Gambling Commission (Section 21 has another 17 paragraphs in the list) the foregoing addition seemed to be aimed at “legalising” the simultaneous “Implementing regulations for safer gambling environments”, that remains pending approval (foreseeably beginning of 2023). Thereby, perhaps acknowledging that many of the precepts included in said Decree require legal coverage in order to avoid the same legal situation the Royal Decree of Commercial Communications is suffering.
Notwithstanding the foregoing, it would seem that the ambiguous and redundant drafting of said paragraph barely manages to “legalise” little more than simply the term applied by the Royal Decree in the bill (the “assessment of the measures”), as it states little more.
Other amendments of the Gambling Law introduced in the amendments phase
In respect of bill initially submitted to Parliament, other modifications of the Gambling Law have also been added, during the parliamentary procedures, with the brief and simple terms set out hereinabove, and said modifications have a range of different terms and applications:
A/ A Section 7 bis is added, entitled the “general principles for advertising, promotion and sponsorship of gambling and betting activities”, and introduced the concept of “social responsibility”, which is the essential precept applicable in relation to the prohibitions regarding the terms and content of commercial communications.
It is highly likely that this addition has arisen from an incidental situation in relation to the reading of the bill: the Supreme Court has filed an issue of unconstitutionality in relation to Section 7(2) of the Gambling Law, which has created a significant degree of legal uncertainty. This section constituted the only legal coverage that the Government aimed to establish for the recent Royal Decree 958/2020 on Commercial Communications for Gambling and Betting Activities, which was a regulation subject of a lengthy and controversial parliamentary procedure regarding the final terms thereof. In case the Constitutional Court decides to declare said Section null and void, the Gambling Law now has this new Section 7 bis that, in part, however not totally, would resolve this hypothetical legal shortfall.
B/ A paragraph 3 is added to Section 8, that expressly refers to the possible Collaboration Agreements with the Autonomous Regions for the interconnection of the different Gambling Ban Registers (registers of prohibited persons) that exist, which is a task that up until now has been carried out with only a few Autonomous Regions (Castile La Mancha and Cantabria) for the purposes of coordinating the prohibitions of the different state and autonomous region ambits, by means of IT developments. Although this legal solution is one way to deal with this problem, we have already set out in other comments that the spirit of the modification could have been more “ambitious”: expressly establishing the exclusive jurisdiction, and applicable throughout the State, to control and manage said Register, by reason that this issue represents a restriction of a civil freedom (namely, the freedom to gamble), that cannot be assumed, in our judgement, within the ambit of the Autonomous Regions (Article 149(8) of the Spanish Constitution: Civil Legislation). For the same reason that the existence of Autonomous Region Criminal Records Registers would be absurd.
C/ And Section 13(2)(c) of the Gambling Law is modified, that lessens the requirement for not having any prior infractions for the purposes of obtaining the state gambling licence, eliminating the reference to “very serious infractions in relation to the Autonomous Region Gambling laws”.
Another regulation approved that also bears no material relationship with the Gambling Law
Finally, the approved Act also adds a new Tenth Additional Provision to the Gambling Law that is entitled “Guidelines for the safer use of non-fungible digital assets, loot boxes, or monetisation mechanics of user participation in video games”.
As can be seen from the foregoing title, this precept relates to a mandate to the Government in relation to video games, that should require a specific Act for said purposes, which is, at least in relation to “loot boxes” already included in the text of a bill submitted for public disclosure and information during the month of July. Accordingly, this contrived last-minute addition could have been spared.
Act 23/2022, that modifies Act 13/2011, of 27 May, entered into force on Friday 4 November.
6 November 2022