Proyecto de Real Decreto de Comunicaciones Comerciales de las Actividades de Juego. Logotipo del Ministerio de Consumo

Proyecto de Real Decreto de Comunicaciones Comerciales de las Actividades de Juego.

Draft Of Royal Decree on Commercial Communications of Gambling Activities. (version 24 February)

Procedure Of Public Information: Deadline for submission of suggestions and allegations until 16 March

The text for Public Information of The Draft of Commercial Communications Decree for Gaming Activities (the “Bill”),  preceded by an extensive Impact Report, has been published on the website of the Spanish Gaming Authority (“DGOJ”)
It is planned that its processing will continue for several months and that new reports and opinions will be issued by various advisory bodies such as the Council of Consumers and Users, the Spanish Data Protection Agency, the CNMC and also the Council of State. It is expected that it will enter into force on 1st July, provided that it can be approved earlier.
In view of the numerous requests to regulate this subject which was bound by Law 13/2011 on the regulation of gambling, the Ministry of Consumer Affairs has chosen to limit intensively (and not prohibit) the manifestations of advertising, the promotion, and sponsorship of online gambling (and lotteries) that are under its competence.
Considering the 2017 Bill, these are the main novelties in the current 2020 Bill:

A) an intensification of limitations on the exercise of advertising activity from a material point of view, such as:

  • The prohibition of the issuance of commercial communications with the appearance of famous people or people of public notoriety,
  • limitations on the practice and advertising of prospecting and customer loyalty promotions,
  • restrictions on free-to-play applications,
  • strengthening of the material content of the principles of application to all types of commercial communications.
B) the setting of greater restrictions in the issuing of commercial communications (of online games) through presential means.
  • Prohibiting their broadcast on certain land-based channels and
  • Restricting its realization to those areas permitted by the Autonomous Communities where they are located.
(C) a deeper restriction of commercial communications of state-level gaming activities in audiovisual media.
  • Allowing the issuance of this kind of ads only in the time slots set for the programs dedicated to gambling and betting (between 1 and 5 a.m.),
  • with some exceptions for certain games and modalities (sports betting on live broadcasting, bingo, instant lotteries, mutual betting, and contests, among others), and extending the regulatory framework to services on demand.
(D) a limitation of advertising and promotion in the information society services environments, taking into account the peculiar nature of the same, more restrictive than that existing in the versions fixed in 2015 and 2017,
  • establishing specific rules for commercial communications that are broadcast over social networks,
  • fixing added items for advertising contracts that a game operator can subscribe to with betting forecasters or “tipsters”,
  • and extending the restrictive time-slot model to commercial communications that operators can make through video exchange services across platforms.
Although many of the 37 articles are of high complexity, we will see below the issues that are of great relevance.

In the area of advertising, The Project lays down specific provisions according to the advertising channel:

  • In audio-visual communication services(which includes “on-petition” or “on-demand” services) the times at which advertising can be broadcast, THE GENERAL HOURS are restricted from 1h to 5h in the morning, but with important exceptions:
    • In audio-visual communication services. From 20:00h to 5:00h in live events broadcasts, sports, horse racing, and fixed odd bets can be advertised, with certain limitations of the message.
    • In audio-visual services all those relating to mutual bets, instant lotteries, and bingos. The wording here is confusing and seems to only apply to instant lotteries. Limitations on reinforced child protection times only (8 to 9 hours and 17 to 20 hours on weekdays and 9 to 12 hours on Saturdays, Sundays and public holidays)
  • In land-based environments there is a general reference to the rules of the Autonomous Communities, which are often more restrictive or prohibitive, but also with exceptions:
    • Those that are made in the land-based  gambling establishments, such as in a casino (does not include bars and hospitality).
    • Those that are carried out in application of a certain sponsorship within the sports facilities
  • Postal communications are strictly prohibited. rules are established for television contests.
  • Special rules are established for deferred effect lotteries (except deferred lotteries), and raffles. Advertising is permitted except in advertising blocks immediately prior to or after targeted programs for children’s audiences.
  • Special rules are established for advertising in video exchange services, or by sending an email, or on web pages, or on social networks (in this case of complicated technical application).
  • Operators’ web pages are considered commercial communications
  • Special rules are established for commercial communications of tipsters or forecasters.
In terms of sponsorships
  • The use of trademarks, trade names, denominations or messages of the sponsor is limited to events, goods or services designed for minors; nor to activities, sporting events or their broadcasting aimed at minors or in which they participate exclusively.
  • Brands may not be used to identify sports facilities or entertainment centers or add the brand name to the team name.
    • Exception: T-shirts or sports kits are allowed to be sponsored (however the Spanish preposition used is worthwhile allegating from our point of view as it clearly states that the sponsorship “of” T-sirts is allowed, as opposed to the sponsorship “in” T-shirts is allowed)
In terms of promotional activities
  • Commercial communications on prospecting promotions that collect financial amounts are prohibited.
  • Customer acquisition (bond) promotions are limited to 100 euros, although DGOJ appears to be empowered to modify this figure.
  • These promotions cannot be directed to customers listed as players at risk.
  • Information on bonuses and promotions is subject to strict user information conditions.
As for co-regulation

The Project continues to maintain the advertising co-regulation regime that allows for the establishment Of Codes of Conduct by private entities that are dedicated to, together with the Administration, to include these limitations and others that are intended to be assumed by entities that voluntarily adhere to.

As for responsible gambling

With regard to responsible gambling, Title II is devoted to promoting active information and user protection policies, in accordance with Article 8 of Law 13/2011 on the regulation of gambling, promoting corporate social responsibility measures in companies.

  • The figure of the responsible gaming delegate is introduced in the operators, who will be responsible for monitoring these policies and for preparing an annual report on the activities carried out by the operator in this area.
  • It establishes the obligation to incorporate mechanisms and protocols for detecting the risk behaviours of registered users.
  • Rules concerning the suspension of user accounts are introduced in the case of participants registered in the Register of interdicts, and the voluntary self-exclusion regime.
Loyra Abogados
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