Royal Decree on gambling advertising published in the Official State Gazette

Royal Decree 958/2020, of November 3, on Commercial Communications for Gambling Activities (“RDCC”) has been published in the Official State Gazette after its approval by the Council of Ministers. It makes radical changes to the advertising framework for gambling companies in Spain. The RDCC introduces measures already discussed in this blog in February and July, including (i) restricting commercial communications to the 1 a.m. to 5 a.m. time slot; (ii) restricting sponsorship; and (iii) banning the advertising of welcome bonuses.

The final version differs from the version published on June 9, 2020, subject to the European Commission’s review. See an overview of the most significant changes to promotional activities (article 13):

• Promotions may only be offered to customers that: (i) have had an account open for at least 30 days; and (ii) have been appropriately verified. The final RDCC no longer requires customers to have made at least three deposits.

• Promotional communications may only be (i) addressed to existing customers; (ii) shown in a separate section of the gambling operator’s website or app; or (iii) shown in establishments open to the public of the operators licensed to sell lottery games (lottery resale stores).

• Finally, operators may offer general promotions to customers that have obtained an increase in their deposit limits within the following 30 days, but not customized promotions (limiting the previous version’s general prohibition).

As for commercial communications through information society services (article 23), digital platforms focused on reporting horse racing and sporting events may have a betting/gambling section on the website if they meet a set of requirements provided in article 23.

Regarding social networks (article 26), companies disseminating commercial communications through their social network profiles may only send these communications to: (i) users following the company’s profile; (ii) users “who have shown an active interest in gambling activities;” or (iii) users registered as customers of licensed gambling operators.

Also, if a social network or any of its features qualify as a video sharing platform, any commercial communications disseminated through the network or the feature will be restricted to the 1 a.m. to 5 a.m. slot.

The most significant changes in this latest version relate to the dates of entry into force of the various royal decree provisions. According to its operative part, the RDCC will enter into force on the day following its publication in the Official State Gazette, i.e., on November 5, 2020. The RDCC provides for the following interim periods for any agreements concluded prior to November 4:

• Sponsorships may remain in force until August 31, 2021, without being affected, until that date, by the requirements of article 19.2 (e.g., the restriction to the 1 a.m. to 5 a.m. slot for commercial communications disseminated or physically placed and shown in live events).

• Celebrities may appear in commercial communications until April 1, 2021.

• The agreements with providers of media services and video sharing platforms will not be subject to the 1 a.m. to 5 a.m. restriction until August 30, 2021.

• The agreements with physical advertising providers will not be subject to the restriction of article 17 (local regulations; the ban on sending commercial communications by mail) until August 30, 2021.

• The agreements to disseminate commercial communications through social networks may be addressed to all kinds of users, other than minors, until August 30, 2021.

Articles 13 (promotional activities), 23.1 b) and c) (gambling websites and apps and search engines), 24 (commercial communications via email or equivalent means), 25.3 (video sharing channels or accounts) 26.3 (social network channels/accounts) and 27 (bet predictors) will enter into force on May 1, 2021.

The first final provision modifying article 36 on the deposit limits in the Gambling Act 13/2011, of May 27, will enter into force on January 1, 2021.

In summary, the approval and publication of RDCC entails a paradigm shift in the ways and especially the means of making commercial communications about gambling activities. The affected sectors have more time to adapt to it than expected, since there are many commercial agreements affected by these new measures.

Authors: Albert Agustinoy, Alicia Costas, Clara Sánchez and Mónica Ferrer