Teodora Luca Avocat – C.A Luca Mihai Cătălin
(Continued from last issue)
Such an interpretation is confirmed by the legislation applicable to audiovisual communications, under which the principle of the protection of minors must govern any audiovisual commercial communication, regardless of its form and duration.
By analyzing the content of such communication (made under the former law), the National Audiovisual Council found that the transmission of a public message in which the urging to participate in the game is unequivocal within a timeframe that allows it to be received by the under aged audience, is illegal. In the analyzed advertising material, for 30 seconds, frames with people who participated in gambling activities were explicitly presented, inviting unequivocally to participate in the game with the incentive Play_____!
In the reasoning of the aforementioned decision, the Authority noted that juveniles are easily influenced in what their behavior is concerned and do not have the correct representation of their own actions, given the low capacity to discern, given the lack of experience, a context in which the presentation of gambling as a way of easy earning or direct incentive to participate in the game is contrary to the legal provisions on the protection of this category, regardless of its form or duration.
This form of promotion has largely been maintained by the operators’ materials, as gambling is often presented as a way of easy enrichment or a way to join exclusive social environments.
On the same note, it is also worth mentioning the inducements to participate in game by public figures, models for minors, the association of their image with gambling accrediting the idea that participation in the game of gambling is risk-free, due to the integrity guarantee provided by the respective celebrity.
Of course, such communication is not forbidden and can be extremely efficient for operators, but, considering the provisions of Art. 12 reported to the provisions of art. 10 par. 3) of the Ordinance, we consider that the access of minors to such messages should be restricted also.
In the respect of the implementation of the principle of protection of possible addicts against gambling, we consider that the obligation of the organizer is ensured by observing the ban to send promotional messages to the players temporarily or permanently excluded, as well as by the prohibition to include information on the bonuses granted in the advertising materials publicly transmitted.
Special benefits, bonuses granted to participants by the organizers under the conditions set forth in the game rules can only be promoted in their own locations, on their own websites or affiliates or by sending electronic messages to players who hold active accounts in the organizer’s database.
Such an approach is intended to provide the client with the right criteria for making the decision to participate in the game.
Only after such a decision has been made, the participant is given access to the information regarding bonuses that he may benefit from and which will eventually constitute criteria for the selection of the company which he will enter into a commercial relationship with.
In the first part of the phase analyzed, a large number of online gambling operators concentrated their gambling promotion around bonuses, legally justified on the fact that the ban on promoting them, -provided for in the methodological rules-, would not have been applicable to companies operating under provisional law. I did not share this interpretation, considering that the timely application of these provisions is analyzed in relation to the moment when the public communication was made and not when the right to perform the gambling business was granted.
Certainly an important role in regulating gambling public communication rests with the competent authorities (CNA or ONJN) who have the legal means to remove messages whose content can be considered offensive or non-compliant.
In our opinion, the CNA’s response to the elimination of all gambling organizers’ promotional materials within the timeframe reserved for programs accessible to minors is legally unjustified, as long as not all of these materials contain messages that might affect the growth and development of minors . As there are no objective criteria in the legislation to determine which messages would have a negative impact on this audience, the authority has opted to remove all advertising material, but this situation does not correspond to the intended purpose of the legislator.
The role that operators can play in establishing a healthy and sustainable business environment cannot be ignored, including in terms of public-sector messages.
In our opinion, this category of activities does not require over-regulation, but it is imperative to align advertising messages to legal requirements. Operators have the means to ensure that the consumer is properly informed, to place and maintain gambling activities in the sphere of entertainment, without distorting the purpose of the promotion – long-term income.
Only by combining the creative resources of marketing with the need for legal compliance and protection of vulnerable categories will it be possible to promote and carry out activities carried out without the risk of legislative or sanctioning conducted by the authority.