We have drafted several articles in time on a common topic, namely gambling advertising and the related regulatory measures. The reasons are obvious since anyone who had a minimum contact with the industry already knows that gambling advertising is probably the favorite subject for discussions and (sometime) regulation for the decision-making factors.
At the end of 2018 we are facing the situation to analyze the same subject, since we have a new proof about the legislative preferences targeting the gambling sector. Even though both the proposals, as well as the actual amendments are well known in the industry, we shall present hereinafter a few observations stemming from the literal interpretation of the most recent texts related to gambling advertising.
Thus, a few months ago, the National Audiovisual Council (”NAC”) has a published a proposal for the amendment and supplementation of the Code regulating the audiovisual content (the ”Audiovisual Code”). In accordance with this proposal, Article 89 of the Audiovisual Code would be changed in the sense that advertising spots promoting gambling ”are subject to the conditions related to the protection of minors provided in chapter II <<Classification of programs for the protection of minors>> from title II <<Protection of minors>>. Advertising spots for online betting are exempted and such may be broadcasted also during live sport events.”.
Where we refer to the decisions for entering into legality issued by the NAC in 2017, as well as the discussions held during the meeting where NAC’ members have proposed the above text, it may be deemed that the real intention of the authority is to prohibit the broadcast of gambling commercials prior to 11PM. However, the proposed amendment does not reflect at all this intention, but, to the contrary, it creates a very unclear situation. Namely, the chapter of the Audiovisual Code which is referenced in the proposed amendment classifies programs in accordance with various criteria. If we were to take into account the landmark apparently envisaged by the NAC (11 PM), it may be stated that gambling advertising are assimilated to the category of programs prohibited to minors under 15 years old, since this is the only category provided by Article 21 of the Audiovisual Code where 11PM is mentioned. Naturally, such an interpretation would lead to a conclusion breaching at least the rules of logic since the core reason invoked by the NAC for regulating gambling advertising is the protection of minors, but, in the analyzed scenario, it would follow that minors between 15 years old and 18 years old are not benefiting from this protection.
In a different hypothesis, based on the general principle from the Audiovisual Code related to the protection of minors, it may be concluded that gambling advertising may be broadcasted “only if the broadcast is restricted via a conditional access system”, as provided in Article 12 from the same chapter II referenced by the NAC.
The above scenarios do not show the professional feature to “dissect” any text having a legal content. Unfortunately, the lack of clarity of the proposed regulation results from a simple reading of the provisions existing in the discussed chapter of the Audiovisual Code, where no clear landmark may be identified to establish eventual restrictions for airing gambling commercials.
Further on, the proposed text is not deficient only in what concerns the legislative technique, since a different issue can be identified in the very next sentence. Namely, it is hard to understand why an exception is proposed only in what concerns the commercials for “online betting” and how such an exception would not create discrimination in relation to all other categories of games of chance, be it land-based or online.
If a top of unclear provisions is made, the proposal to amend the Audiovisual Code cannot however outpace the recent modification of GEO no. 77/2009 which sets forth that also the activities of Class 2 licensed providers may be suspended “until the situation which generated the suspension ceases”. A rigorous and predictable legal analysis cannot identify such “situations”, since this is a matter which is more related to imagination and creativity.
Going back to advertising, a different modification of GEO no. 77/2009 refers to the restriction “to display the value or goods awarded through bonuses, promotions or real or simulated jackpots outside gambling locations”. It is possible that the real intention behind this amendment refers solely to stopping certain promotional practices pertaining to land-based operators. However, the enacted text does not reflect in entirety this intention and the sense of the term “display” may lead to an extensive interpretation of the restriction in the sense that such does not refer solely to the placement of a poster
”outside gambling locations” (this notion is not defined in the applicable regulation).
Given the current context, we hope that the interest to (ultra)regulate gambling advertising, if further materialized, will be based firstly on the clarity of the provisions since a provision lacking clarity cannot achieve the intended purpose, but only create arbitrariness (or, if we follow the wording of the legislation, create ”situations”).
Place your bets (until the situation is clarified)!
text by: Andrei Cosma – Avocat, Nestor Nestor Diculescu Kingston Petersen