Victor Horcajuelo and Mariano Santos report on new gambling publicity rules in force in Spain resulting from the increase in use of online gambling websites during the state of alarm caused by COVID-19.

The state of alarm caused by COVID-19, which has forced Spanish citizens to stay at home, has led to an increase in the use of online gambling websites. The Federation of Rehabilitated Gamblers shows an increase in on-line enquiries from gambling rehabilitation centers. For this reason, article 37 of Royal Decree-Law 11/2020 focuses on the advertising of gambling, both online and land based.

By gambling we mean those entities that carry out a gambling activity in accordance with the parameters of Law 13/2011, of 27 May, regulating gambling; namely:

• Lottery, betting and other gambling activities, in which amounts of money or objects economically measurable in any form are risked on future and uncertain results, and which allow their transfer among participants, regardless of whether the degree of skill of the players prevails in them or whether they are exclusively or fundamentally of luck, consignment or chance.
• Raffles and competitions, where participants are required to pay a fee.
• Occasional gaming, which differs from the other games in the previous sections because of its sporadic nature.
• Cross-border gaming activities, i.e. those carried out by natural or legal entities based outside Spain that organize or offer gaming activities to residents in Spain.

As long as the state of alarm remains in force, these entities will be prohibited from “commercial communications which, implicitly or expressly, refer to the exceptional situation resulting from the COVID-19 disease or call for the consumption of gambling activities in this context”. For the purposes of this prohibition, “Commercial communication” means any kind of publicity broadcasted through any means aimed, directly or indirectly, at advertising any gambling activity as defined in Law 13/2011.

During this period, these entities will also not be able to carry out the following activities:

• Promotional activities aimed at attracting new customers or securing the loyalty of existing customers by collecting financial amounts, vouchers, bonuses, discounts, betting or game gifts, quotas or prize multipliers or any other similar mechanism.
• Broadcasting of commercial communications in audiovisual media services, including on-demand services where they are distinguishable and separable, except in the time period from 1 a.m. to 5 a.m.
• Broadcasting of commercial communications which are either promoted, sold or organised by videosharing service providers through platforms, except in the time period between 1 a.m. and 5 a.m.
• Issuance of marketing communications in information society services (including individualized communications in e-mails or equivalent media and social networks). 

Infringement of these prohibitions will be considered a serious offence, which may result in fines ranging from 100,000 to 1,000,000 euros and/or suspension for a period of up to six months of the activity carried out.

Thus, advertising for games, both online and traditional, is limited for television, radio and video sharing platforms such as YouTube to the early morning hours (from 1 to 5 a.m.), while other advertising (such as on social networks) is completely prohibited until the end of the state of alarm. In addition, any type of incentive that tries to attract new clients will also be penalized.

It is very likely that these measures are causing damages both to gambling companies (e.g. reduction of potential users) and to broadcasting companies (e.g. decrease of income from advertising). Therefore, it is possible that claims for compensation against the Spanish Government will be filed in the following months.

Finally, it must be noted that, though this regimen will be only in force during the state of alarm, one of the objectives pursued by the current Spanish Government is to pass a Royal Decree regulating the publicity of gambling. This Royal Decree was announced by the Minister of Consumer Affairs last February and a first draft was published for public consultation. This first draft contains a restrictive legal framework with significant limits and to advertising which will impact on the sector.