Tottenham Report: Spanish Supreme Court annuls some gambling-ad restrictions

April 15, 2024 11:00 PM
Photo: Shutterstock
  • Hannah Gannagé-Stewart, CDC Gaming Reports
April 15, 2024 11:00 PM
  • Hannah Gannagé-Stewart, CDC Gaming Reports

It came as somewhat of a surprise last week to see news of a gambling-advertising ban in Spain rowed back on, particularly as a similar appeal had failed as recently as November. 

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Way back in 2020 at the height of the pandemic, Spain’s Royal Decree on the Commercial Communications of Gambling Activities came into force, limiting ads to be broadcast between one and five a.m. each day, banning sponsorship deals, and restricting promotional bonuses, among other measures. 

In the context of a population trapped inside their houses with little other than digital entertainment to occupy them, many no doubt believed that the new measures, some of which were intended to be temporary, were rational. The Spanish Digital Gaming Association (Jdigital) did not and immediately pushed back. 

Jdigital, which has almost 80% of Spain’s regulated industry under its wing, called out the new laws. “[We] are afraid that the regulation proposed by the Ministry of Consumer Affairs may have the opposite effect to that intended, since it implies such a disproportionate restriction of the advertising activity of legal operators that it is comparable, in practice, to a prohibition,” it said at the time. 

“This will mean, as has happened in other countries where similar measures were adopted, the foreseeable increase in the activity of unlicensed operators, which will have dire consequences in terms of the protection of vulnerable groups.” 

It was arguably strategic genius by the Spanish government to introduce such a draconian clampdown on the industry amid the chaos of COVID. In light of the then-unfolding crisis, curbing gambling advertising to such an extent looked more proportionate than it may have at any other time — to those outside the industry, anyway. Inside the industry, there was evident dismay.  

The European Gambling & Betting Association (EGBA) strongly condemned the move, highlighting that the new rules didn’t apply to Spain’s state-run lotteries, which account for around 65% of the country’s gambling revenue and 34% of the advertising spend on gambling. As such, the EGBA argued the new laws were tantamount to state aid. 

EGBA Secretary General Maarten Haijer urged the Spanish government to reconsider, arguing the lack of data to support the measures and that unfairly limiting the rights of private companies to advertise could conflict with EU state-aid rules.  

“The restrictions clearly discriminate against private companies and favour the economic interests of the state-run lotteries, who are by far the country’s leading advertisers in the gambling sector. And while EGBA fully supports responsible advertising, the scope and type of restrictions proposed are not justified by the evidence available, including the country’s relatively low problem gambling rate and the significantly lower public awareness towards gambling advertising compared to other major advertising sectors,” he said. 

Almost four years later, Jdigital has succeeded in getting the Spanish Supreme Court to partially uphold its appeal of the law. This includes overturning Article 13, which limits targeted advertising towards players who have had an account for less than 30 days. 

Operators are again allowed to advertise in locations that had been prohibited by the law and celebrities are once again allowed to appear in gambling advertising. Furthermore, advertising is allowed to return to social-media platforms and YouTube where audiences are over 18. 

However, Jdigital wasn’t able to get all aspects of the law overturned. The restrictions on TV and radio advertising in the wee hours only remain, as does the Article 12 ban on sports sponsorship and broader gambling-sponsorship deals. These measures, in line with regulators’ preferences across many jurisdictions, are likely to be far more difficult to overturn. 

Following the Supreme Court’s decision, Jdigital reaffirmed its commitment to player protection and urged public-private dialogue over regulatory standards, not least because it may expect further pushback from the government on this latest legal clarity. 

“We want to offer our knowledge for the development of proportionate standards that guarantee the responsible gaming objectives that we all defend and pursue,” the trade body added. 

It may not be the last time Jdigital fights this particular battle, but for now, the Supreme Court’s decision does offer some relief to operators competing for players’ attention in the region.