Guideline on advertising gambling activities
By:
Teodora Luca
Senior Lawyer,
Nicoleta Bărăgan
Senior Lawyer,
Andreea Ciocanaru
Senior Lawyer,
Mihai Cătălin Luca Law Office
Continuation of the previous article
A nuanced situation in which the obligation to receive prior endorsement for promotional activities becomes incident was regulated through art. 6 para. (5) of the Methodological Norms, however, with applicability for gambling organizers exclusively. In light of this legal provision, activities meant to promote the marketed goods and services, organized by any gambling organizer, consisting of awarding winnings, monetary or of any other kind, organized outside of their own facilities or of their own websites, which involve the use of gambling-specific means of awarding prizes, as provided for in Article 3 Paragraph (3) of GEO 77/2009 are subject to ONJN endorsement.
In our opinion, there is no doubt that the provisions of art. 6 para. (5) of the Methodological Norms may not be read and interpreted in any way other than in corroboration with the provisions of art. 3 para. (1) and (3) of GEO 77/2009 (the reference to Article 3 Paragraph (3) of GEO 77/2009 even being expressly included within Article 6 Paragraph (5) of the Methodological norms).
Thus, as a result of the corroborated interpretation of these legal provisions, the obligation to request and obtain ONJN endorsement, laid down in art. 6 para. (5) of the Methodological norms, for a specific promotional activity, arises and becomes incident only in situations where the promotional activity also cumulatively meets the elements defining gambling, as regulated through Paragraph (1) of Article 3 of GEO 77/2009.
However, although our previously presented interpretation has been validated in judicial practice, the ONJN still considers that a prior endorsement is necessary for promotional campaigns which (even though do not cumulatively meet the elements defining gambling, as regulated through para. (1) of art. 3 of GEO 77/2009) meet the conditions set out under art. 6 para. (5) of the Methodological Norms (i.e. for promotional campaigns organized outside the gambling organizer’s own facilities (for landbased) or own websites (for online), which involve the use of gambling-specific means of awarding prizes, such as the use of a random generator mechanism for the selection of the winners within the campaign).
The obligation to receive prior endorsement from ONJN inevitably makes the organization and implementation of this kind of promotional activities more difficult, given the relatively long term the authority may issue the endorsement within, namely 30 days from the moment the complete documentation accompanying the endorsement request is submitted (term regulated by art. 6 para. (8) of the Methodological Norms).
Regarding the promotional actions that do not fall under the ONJN’s prior endorsement requirement, the rule is that the a mere notification of the specific Regulation of the promotional campaign to the ONJN at least one business day prior to the commencement of the campaign is sufficient.
i) In accordance with article 7 para. 4 from Government Emergency Ordinance no. 77/2009, it is forbidden to display outside the gambling locations any messages regarding the values or the products granted as bonuses, promotions or jackpots.
Considering that, in accordance with article 12 from Government Emergency Ordinance no. 77/2009, advertising performed in the locations and on the website of the licensed gambling company is not considered gambling advertising, the restriction to promote the values and/ or product offered as bonuses, promotions or jackpot is applicable to any action performed outside the locations or the website of the companies holding a license to operate gambling activities.
The sanction to be applied for breaching the rule consists of the fine between 50.000 – 100.000 Lei; the authority may also decide the application of the complementary sanction, consisting of revocation of the gambling license held by the company, depending on the conditions under which the contravention was committed and its effects.
ii) Televised advertising
Broadcasting in the television and radio programs of gambling advertisments may be performed only during 23.00 – 6.00, except advertising for betting activities, which is allowed also during live sport events.
At all times, the advertising activity must observe the regulations of a correct information to be brought to the player’s knowledge and contain the mandatory information (gambling license number, logo of the Gambling Authority, interdiction to participate to gambling activities, applicable to minors).
iii) Social media
In 2014, Romanian High Court of Cassation and Justice has concluded that the messages posted on social media (Facebook) are equivalent of public messages, which resulted in the interdiction of displaying the bonuses and prizes in the advertising materials of on-line gambling licensed companies, as the social media pages are not equivalent of the companies’ websites.
Main difference between the companies webpage and social media (Facebook page) is that accessing the webpage of the company involves a voluntary action of the customers, while the content posted on Facebook (or other social media channels) may be delivered to recipients without any prior action or consent.
As result of this interpretation, advertising on social media must observe the restrictions applicable to advertising on public areas:
i)Company is not entitled to promote the bonuses offered to the customers;
ii) The value and/ or the products offered as bonus, promotion or jackpot prizes should not be promoted;
iii) All advertising material must bear the license number, interdiction of minors to participate to the gambling activities and authority’s logo.
So far, the National Gambling Office has shown tolerance with regards to the advertising messages posted on social media channels and, to the best of our knowledge did not sanction the companies promoting the prizes and the bonuses in this manner, although the interdiction is provided by the law.
Conditions and limitations on promotion of actions of granting bonuses to participants and of performance of promotional campaigns
Under this section we aim to detail the most relevant rules applicable to advertising and promotion of gambling activities, which are equally applicable to promotion of actions for granting bonuses to participants or of performance of promotional campaigns.
Advertising and promotion of the gambling activities authorized on the national territory shall be done with the observance of the following principles:
(i) protection of minors and prevention of their access to gambling;
(ii) ensuring the integrity and transparency of the gambling activities carried out by and through the gambling operators, as well as a fair, constantly supervised and verified gambling system, in terms of security and fairness of the activities carried out;
(iii) preventing criminal activities that may be carried out through gambling activities;
(iv) ensuring a balanced and fair development of different types of gambling, in order to avoid destabilizing the economic sectors concerned;
(v) implementing a continuous process of updating regulations in this field of activity, in order to mitigate and limit possible vulnerabilities of this economic sector to potential criminal activities, as well as to reduce exposure to money laundering and financing acts of terrorism, tax fraud, cybercrime, as well as the prevention of offenses related to public order, national security and public health;
(vi) developing and implementing a program to protect gamblers against gambling addiction.
The gambling operator should include on the advertising materials, at a visible place, the ban on minors to participate in gambling, signaled by visual symbols, the series and the number of the license for organizing gambling activities, as well as the National Gambling Office (“ONJN”) logo.
Advertising materials will not be placed inside the premises or on the enclosures of educational establishments, socio-cultural or religious establishments.
Promotional activities consisting of advertising, promoting or specific marketing related activities, carried out by the gambling operator at its own premises (for landbased) or on their own websites (for online) are allowed under the license for organizing and the authorization for exploiting gambling activities, with the observance of the specific advertising legislation.
Advertising carried out through unsolicited electronic messages containing information regarding gambling, for an unlimited number of persons, is prohibited.
Promotion of actions of granting bonuses to participants is only allowed at operator’s own premises (for landbased), its own website (for online) or on the website of affiliates, as well as through the transmission of electronic messages to players having active accounts existing in their own database, if the players have previously given their consent for the receipt of such.
It is forbidden for remote gambling operators to send advertising materials to players who have temporarily or permanently excluded themselves from gambling or who have requested the interruption of their access to gambling.
It is forbidden the display, outside the operator’s premises, of the values or goods granted through bonuses, promotions or real or simulated jackpots. Kindly note that, considering that social media is assimilated to a public space (according to a Decision of the Romanian High Court of Justice), the aforementioned prohibition is also applicable in case of advertisements on social media channels.
In consideration of the demarches of the politicians from almost entire political spectrum, intended to reduce gambling activities by reducing their visibility, by restricting the advertising possibilities for gambling companies, it is, in our view, more important than ever that companies would pay attention to legal restrictions when it comes to advertising.
This would ensure a proper support to the efforts to keep the sustainability of the business, by maintaining reasonable advertising possibilities, but would also represent a support for the customers, who will be provided accurate and proper information.
