by Teodora Luca, Senior Associate Lawyer, Law Firm Luca Mihai Cătălin
Since March 2020, the COVID-19 pandemic has also had a significant impact on the gambling industry, as traditional gambling activities have been suspended successively for extended periods.
The change in consumption habits generated by the COVID 19 epidemic and the increase in preferences for online services accelerated in 2020 in probably all relevant markets, with the increase in the use of computers, smartphones or tablets.
This change in consumption habits has also manifested itself on the Romanian market, the increase in the preference for online gambling being accompanied by an increase in the visibility of these activities, as a result of advertising actions increasingly present both in audio-visual and online or outdoor.
According to a study on the impact of advertising of gambling activities on consumers during 2020, published in June 2021 and commissioned by the Gambling Commission (UK regulator):
- The advertising and the activities sponsored by gambling companies reach consumers widely and frequently, 6 out of 10 respondents confirming that they see gambling ads or sponsorships at least once a week;
- While promotional activities associated with sponsorships and traditional advertising (TV, newspapers, outdoor) have been seen by all age groups, online advertising is more likely to be seen by younger adults;
- Slightly more than a third of players active in the last 12 months claimed to have been persuaded to spend money on a gambling activity through advertising they had seen in the last 12 months.
- About one in six adults follow the gambling companies on social media. Those who do are probably men aged between 18 and 44 and players for at least four weeks.
During the first international lockdown, the Betting and Gambling Council imposed a waiver of TV advertising for gambling and the application of more demanding measures regarding the restriction of public access under the age of 18 to online gambling promotion materials. At the same time, online gambling operators have been forced not to apply bonus offers or customer promotions for which there are suspicions of risk, regarding the development of gambling addiction.
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While in some European countries restrictions on the promotion of gambling were immediately applied, in others, including Romania, gambling advertising has become increasingly present, provoking discussions in the public space about the need for the authority to intervene more firmly in limiting it or in protecting the vulnerable categories.
In the legislation on the organization and operation of gambling, the regulation of advertising and promotion actions is rather formal, with no emphasis on the content of the materials.
Advertising is permitted to all companies that hold a license to organize and authorize the operation of gambling.
In the advertising and promotional materials, it is mandatory to display the license number, the ONJN logo and the ban applicable to minors.
Although insufficiently regulated, the text of the law requires companies to take into account the principles set out in art. 10 para. 3 of GEO 77/2009.
Among the principles enunciated by the provisions of art. 10 para. 3 of the Ordinance, in our opinion, those that could fall under the incidence of art. 12 are those relating to the prohibition of minors from participating in such activities, as well as those relating to the responsible conduct of gambling (understood, in this context, as the need to ensure the protection of vulnerable players against gambling addiction).
In the absence of exact criteria in the national legislation, on the basis of which to define in a concrete way the obligation of the companies, the provision can only have the character of a recommendation, not being allowed to sanction them.
Ensuring the effective protection of minors against an activity that is forbidden to them is not limited to simply exposing the ban on participation on promotional materials, but it also involves the adjustment of their content so as not to arouse teenagers’ interest or to publish the ads only in spaces or at time intervals when minors’ access to advertising material is restricted. At the same time, we cannot confirm that adequate protection is provided to the dependent consumer, as long as the promotion is focused on the prizes, bonuses or jackpots offered.
According to the European Commission’s 2014 Recommendation regarding the principles for the protection of consumers and users of online gambling services and for preventing minors’ access to online gambling, commercial communications should not:
– make false statements about the chances of winning or about the profit that players can expect from gambling;
– suggest that skills can influence the results of a game, when it is not the case;
– exert pressure to gamble or denigrate people who abstain from gambling by choosing a particular time or place or by the nature of commercial communication;
– present gambling as a socially attractive activity or contain statements by well-known personalities or celebrities who suggest that gambling contributes to social success;
– suggest that gambling can be a solution to social, professional or personal problems;
– suggest that gambling can be an alternative to a job, a solution to financial problems or a form of financial investment.
At the same time, commercial communications should not:
- exploit minors’ lack of experience or information
- use images of minors or young people or create campaigns that attract the minors
- be attractive to minors or young people by reflecting the culture of young people or associating gambling with it
- suggest that participation in gambling marks the transition from adolescence to adulthood.
At first sight, the intervention of the legislator in 2018 was determined by the need to increase the level of protection provided to recipients of advertising messages, art. 7 para. 4 of the O.U.G. 77/2009 expressly regulating the prohibition of displaying the value of prizes, or goods awarded as a bonus, promotion or jackpot.
The Romanian National Gambling Office has confirmed that the ban applies only to the advertising actions of traditional gambling organizers and refers only to the glazed spaces of specialized locations.
As a result of this interpretation of the authority, with the exception of bonuses, which can only be promoted on its own website or on the affiliates’ websites, promotional campaigns or prizes awarded outside the ordinary course of business may be promoted by any means, without restriction.
The interpretation seems to be more permissive than the one resulting from the analysis of the provisions of art. 12 reported to art. 10 para. 3 of the O.U.G. 77/2009, establishing at the same time a discriminatory regime between different types of activities.
Certainly, an important role in the regulation of public communications related to gambling activity belongs to the authorities, but the role of operators in establishing a healthy and sustainable environment for carrying out the activity cannot be ignored either.
