Advertising in gambling

Teodora Luca
Avocat – C.A Luca Mihai Cătălin

The subject of public communications delivered by gambling organizers has come back to the current context in which the National Gambling Office pointed out- during the recent conference (entertainment Arena Expo)- the need for the market to self-regulate so that messages on this kind of activity either be (self) censored, in volume, but especially in terms of content.
In a previous article, we noted the progress made by gambling organizers with regard to business promotion messages, a matter that has been retained by the authority, which appreciates the need to complete the efforts that have been made so that the promotion is limited in quantity also.
The only de facto justification for limiting gambling operators to promote licensed and authorized activities in Romania is represented by the potential and theoretical risk that this kind of activity may represent for vulnerable categories (minors and people at risk of developing addiction). It remains to be seen and analyzed how the authority will be able to impose these limits on legislation, without prejudice to the right of companies to promote their activity, provided that this is done under the authorization issued by the Romanian state.
The Romanian legislature has consistently shown a great interest in regulating the activity of gambling, including from the perspective of public communication, the conditions in which the promotion of gambling activities is regulated even in the art. 12 of Government Emergency Ordinance no. 77/2009 on the organization and operation of gambling: Advertising and promoting for authorized gambling in the national territory shall be made in compliance with the principles provided in art. 10 par. (3). The serial number and organizational license number held by the gaming organizer will be posted, on a visible place, on the promotional material. For the purposes of understanding this article, are not considered promotional actions those actions taken by organizers directly in their own locations and on their own websites. Advertising by unsolicited e-mails containing gambling information for an unlimited number of people is forbidden.
Therefore, there is no doubt as to the possibility of the organizer of gambling (the legal person holding the organizational license and the operating license) to promote the activities carried out, and the conditions for such activities are unequivocally established.
It should be noted that promoting the activity of licensed organizers was permitted also by the previous legislation, and the reluctance in the last period,- before the legislative change of operators and service providers to carry out advertising actions- was generated (without any grounds) by the series of sanctions applied by the regulator (either The National Audiovisual Council, or the National Gambling Office) for the removal of unauthorized activities from the public space.
In order to make regulation effective and to completely exclude the risk that unauthorized operators could be promoted on Romanian territory, the provisions of Art. 26 of the Ordinance, the main contravention sanction, consisting of a fine in the amount of 50,000 – 100,000 lei were amended and complemented by the sanction of confiscation of the amounts resulting from the contravention.
The introduction of the complementary sanction proved to be necessary because, in most cases, the contraventional fine imposed on the service provider proved to be ineffective, being a cost assumed together with the beneficiary.
Once the provisions of the new law came into force, the potential benefits of the service provider could be confiscated by the authority, lacking its activity of interest, which led to the removal from the public space of advertising actions for unauthorized activities in Romania.
At first glance, the conditions for promoting the activity are extremely easy to comply with, organizers generally assuring the promotional materials containing the required details (the number of the license held, the ban on participation of minors and the ONJN logo), which are considered to be sufficient to carry out marketing actions.
Research becomes of interest to the company’s (legal) compliance department when, in determining the content of these materials, it attempts to implement the principles set out in the provisions of Art. 10 par. 3 as far as possible without significantly affecting the ultimate goal of the action – to promote gambling activities.
Among the principles stated in the provisions of art. 10 par. 3 of the Ordinance, in our opinion, those which could fall under Art. 12 are those relating to the banning of minors to participate in such activities and those relating to the responsible conduct of gambling (understood in this context as the need to ensure the protection of vulnerable gamblers against gambling addiction).
To ensure the effective protection of minors against a prohibited activity is not limited to merely disclosing the ban to participate on promotional materials, but involves either adjusting their content so as not to interest them, or transmitting them only in spaces or in hourly intervals where access of minors to advertising material is restricted.

(to be continued in the next edition)