Xavi Muñoz Bellvehí, Gambling and Betting Partner at ECIJA.
At long last, the Royal Decree on Gambling Advertising, which we will analyze below, has been approved and published in the Official Gazette (BOE). The Decree contains the following important provisions:
1. Sponsorship of sports teams, competitions or venues, or on shirts or other sports equipment is prohibited. Sponsorship is possible outside the frame of these prohibitions. The existing sponsorship agreements can remain in force until 31 August 2021.
2. Any kind of promotion for the acquisition of new customers is prohibited. This includes the “welcome bonus.”
3. Promotions targeted at existing customers (loyalty bonus) is allowed, provided that the following two requirements are met: (i) the client has an account that is at least 30 days old, and (ii) the identity of the customer has been verified by documentary evidence.
4. Free games can only be offered to registered customers.
5. The use of famous persons, whether real or fictionary, in advertising is prohibited. However, for existing publicity contracts in this regard, these comercial communications will be possible until 1 April 2021.
6. The broadcasting of commercial communications through audiovisual media and during live sport events is limited to the 1AM - 5AM timeslot. Likewise, commercial communications of any kind, broadcasted or posted, which are captured by an audiovisual broadcast shall be subject to the same time restriction.
7. Commercial communications through physical means (billboards, etc.) must not only comply with the Advertising Royal Decree and the national regulations, but also with the regulations regarding gaming advertising imposed by each Autonomous Region.
However, communications within sports facilities or published in magazines, newspapers or similar media that are part of a wider national sponsorship agreement, will not be obliged to comply with the regional regulations on advertising, but only the national ones.
8. Operators are prohibited from using trademarks or trade names in their commercial communications which they do not own themselves. It is worth mentioning that operators have a transition period of six months from the entry into force of the Advertising Royal Decree to comply with this obligation.
9. The following commercial communications made through digital services will be permitted:
Ads from licensed operators displayed on websites with the “.es” domain or on operators' mobile applications.
Ads on webpages or apps of which the main activity is offering products or information relating to gambling, provided that (i) there are mechanisms in place to prevent access by minors and (ii) these websites or apps feature messages about safe play.
Ads on webpages or apps of which the main activity is to offer information on sports or horse racing events, using a specific section.
Ads resulting from search results. If those are from SEM actions, the keywords used must be directly related to gambling.
Those sent by e-mail or other equivalent means.
Those broadcasted as audiovisual commercial communications on video exchange platforms. With the following restrictions: (i) the platforms must feature mechanisms to prevent commercial communications being shown to minors (ii) these platforms must feature mechanisms for hiding or blocking pop-up ads; (iii) these platforms must feature mechanisms for controlling timeslots.
Ads broadcasted as audiovisual commercial communications on social networks. With the following restrictions: (i) the social networks must feature mechanisms to prevent commercial communications being shown to minors; (ii) the networks must feature mechanisms for hiding or blocking pop-up ads; (iii) the networks must feature mechanisms to segment the target audience, so that the communications will only be addressed to persons who follow the channel of a licensed operator, to persons who have shown an interest, or persons registered with an operator.
10. Advertising agreements with tipsters are allowed. However, they cannot be famous persons.
11. The Royal Decree enters in force on the following day from its publication, i.e., 5 November. However, there are many exceptions in this regard and many provisions which enter into force later.
12. Specific deadlines
The transition period for the measures outlined in the Royal Decree is very complex. Not all provisions come into force at the same time and there are grace periods for existing contracts.
For an overview of all applicable deadlines that operators and other stakeholders must meet, please consult this document.
In our opinion, the Royal Decree in its current form is undoubtedly an excessively restrictive framework and we hope that its application and interpretation by the DGOJ will be a little more flexible in cases where there can be some doubt.
At ECIJA, we have prepared a list of queries to be submitted to the DGOJ, since the reality on the ground does not always precisely fit with the provisions of the Royal Decree. We see a variety of situations that require an interpretation by the DGOJ, as it is necessary to clearly define the framework of what is and what is not allowed. The penalties applicable to our sector are very significant, even disproportionate in some cases, and therefore, before the interpretation criteria and precedents are well established, we recommend that operators will verify the legality of any advertising action.