New version of draft royal decree on gambling advertising

Yesterday, June 9, 2020, the European Commission (EC) published the Ministry of Consumption’s notice on a new version of the draft Royal Decree on Commercial Communications for Gambling Activities (“RDCC”) on the Technical Regulations Information System. The first version of the RDCC was revealed on February 24, after which a public information period was opened for stakeholders to make submissions. We reported on this in a previous blog post.

This notice represents the reactivation of the RDCC’s approval procedure following the standstill due to the COVID-19 pandemic.

We summarize the most important developments below:

• Announcements included on the .es websites of authorized operators and mobile applications from which operators offer gambling activities are expressly excluded from the concept of commercial communications (article 3.g). Therefore, these types of announcements would no longer be subject to RDCC restrictions.

• The definition of in-person commercial communications is extended to include new supports such as monitors and screens, and advertising by megaphone (e.g., in stadiums), through pamphlets or in printed magazines, newspapers and similar media.

• The prohibition on operators using third-party brands will not apply to the branded games offered by the operators (article 7.3). Regarding the general prohibition on using third-party brands, a three-month transition period is introduced to meet this obligation (transitional provision four).

• Operators may also continue using the brands, trade names, or any other commercial image they were using before the RDCC came into force (additional provision six).

• Sponsorship on the kits of clubs and sporting entities is prohibited (article 12.4).

• Offering any type of promotion directed at new customers is prohibited (article 13.1).

• Promotions can only be offered to customers that: (i) have had an account open for at least one month; (ii) have been verified with documentation; and (iii) have made at least three deposits (article 13.1).

• The need to meet the national and autonomous region regulations on advertising gambling activities is excluded for communications included in printed national magazines, newspapers and similar media specializing in games of chance (article 17).

• Issuing commercial communications during live (sporting) events in audiovisual communication services is limited to the general window of 1:00 a.m. to 5:00 a.m. (article 19.1).

• Commercial communications through digital services are only allowed in specific cases (article 23). In particular, authorization is granted for those: (i) on operators’ websites, or applications or media offering competitions; (ii) on websites or applications whose main activity is offering products or information on games of chance, if they have mechanisms to prevent access by minors and disseminate safe gambling messages; (iii) that are the results offered by search engines; (iv) sent by email or an equivalent method; (v) disseminated as audiovisual commercial communications on video sharing platforms; and (vi) disseminated in social networks. This seems to imply that banners are prohibited on general websites, e.g., the digital versions of newspapers and magazines.Las comunicaciones comerciales realizadas a través de servicios digitales sólo se permiten en casos tasados (artículo 23). En particular, se autorizan aquellas: (i) ubicadas en las webs o aplicaciones de los operadores o en medios que ofrecen concursos; (ii) ubicadas en webs o aplicaciones cuya actividad principal sea ofrecer productos o información sobre actividades de juegos de azar, siempre que cuenten con mecanismos para impedir el acceso de menores y difundir mensajes sobre juego seguro; (iii) que sean los resultados ofrecidos por motores de búsqueda; (iv) que se envíen por correo electrónico u otro medio equivalente; (v) que se difundan como comunicaciones comerciales audiovisuales en plataformas de intercambio de video; y (vi) que se difundan en redes sociales. Esto parece implicar que se prohíben los banners en los sitios web generales (por ejemplo, las versiones digitales de periódicos o revistas).

• There is a restriction on disseminating commercial communications on video sharing platforms (article 25). The new requirements refer to the characteristics of the video sharing platforms (they must have: (i) methods to prevent the commercial communications being directed at minors; (ii) mechanisms to block or conceal pop-up ads of their users; and (iii) methods to set timeframe control models) and the accounts or channels disseminating commercial communications on gambling activities ((i) their main activity must be to provide information or content on gambling activities; (ii) they must use the mechanisms available on the video sharing platforms to prevent minors accessing their account or channel; and (iii) they must regularly issue safe gambling messages).

• Restrictions on disseminating commercial communications on social networks (article 26). The new requirements refer to the characteristics of the social network in question (they must have: (i) methods to prevent the commercial communications being directed at minors; (ii) mechanisms to block or conceal pop-up ads of their users; and (iii) methods allowing public segmentation), the profile of users at whom those commercial communications can be directed (they must be users that (i) follow the operators’ accounts or channels; and (ii) are registered as players), and the accounts and channels disseminating commercial communications on gambling activities ((i) their main activity must be to provide information or content on gambling activities; (ii) they must use the mechanisms available on the video sharing platform to prevent minors accessing their account or channel; and (iii) they must regularly issue safe gambling messages).

It is striking that the RDCC does not introduce a general transitional period allowing operators and other stakeholders to adapt their systems and procedures to the requirements of this new version.

We now await the EC’s response so the Spanish authorities can progress with the internal processing of the RDCC.

Authors: Clara Sánchez and Albert Agustinoy