Guideline on advertising gambling activities
By:
Teodora Luca
Senior Lawyer,
Nicoleta Bărăgan
Senior Lawyer,
Andreea Ciocanaru
Senior Lawyer,
Mihai Cătălin Luca Law Office
Activities meant to promote the marketed goods and services play an important role among the business practices adopted by economic operators, and, in particular, by economic operators organizing and exploiting games of chance.
Granting of bonuses and performance of promotional campaigns are allowed under Romanian legislation. Such activities are used by gambling organizers as incentives with the purpose of attracting customers and business growth and are usually promoted on different media channels under advertising materials.
However, both the granting of bonuses and the performance of promotional campaigns, as well as their advertising, are subject to specific legal conditions and limitations as per the applicable legislation, which we shall detail hereinbelow.
At the same time, a tendency for (mostly) non-unified practice at the level of the competent authority (National Gambling Office) in terms of interpreting and enforcing the applicable legal provisions was noticed regarding aspects related to bonuses and promotional campaigns and the advertising related to such. Hence, our presentation shall also address such practices that the authority currently applies.
GENERAL OVERVIEW ON ADVERTISING CAMPAIGNS
i) As a general rule, advertising activity, must comply with the requirement that the misleading advertising is prohibited and the customers must be at all times correctly informed about the characteristics of the services offered.
In order to assess whether the advertising is misleading, all its aspects will be taken into consideration, especially any information contained therein regarding:
i) The characteristics of the provided services, such as the availability of the offer, the nature, the means of performance, the method of rendering the services, whether it corresponds with their purpose, destination, technical and functional parameters, geographical or commercial origin, the expected results as a follow to their use or the results and essential characteristics of the tests or of the controls that have been performed on the assets or services;
ii) The price or the means of calculating the price and the conditions in which the services are performed; and
iii) The nature, attributions and rights of the company, such as: the identity and its assets, the qualifications and the ownership of the industrial, commercial or intellectual property, its awards and distinctions.
Given the aforementioned, it is highly important that the consumers are at all times correctly and accurately informed on the company’s offer, the terms and conditions of use and all the other mandatory information that the company must publicly provide to its users.
ii) Comparative advertising may be performed and will be acknowledged as lawfully performed only if the following conditions are cumulatively met:
i) The advertising is not misleading;
ii) The advertising compares assets or services that address to the same requirements or are destined to the same purposes;
iii) The advertising objectively compares one or more essential characteristics that are relevant, verifiable and representative from the perspective of those services, that may include the price;
iv) The advertising does not discredit or denigrate the trademarks, commercial names, other distinctive signs, assets, services, activities or situation of a competitor;
v) The advertising does not unfairly benefit of the reputation of a trademark, of a commercial name or of other distinctive signs of a competitor or of the origin name of the competitive products;
vi) The advertising does not present with the services as imitations or reproductions of the services that display a protected trademark or commercial name;
vii) The advertising does not create confusion between the traders, between the person that advertises and a competitor or between the trademarks, commercial names, other distinctive signs, assets or services of the person that benefits from the publicity and those of a competitor.
In order to use comparative advertising (best offer in the market, more games available than on any other online platform etc), the company must hold the proves (independent audits, public/ private analysis) to attest the accuracy of the information provided to the customers.
The Company’s representatives and affiliates must also ensure that the means by which the Company’s advertisement is performed would not violate the trademark of another IP rights of a different entity and that it would not instigate the audience to discard other similar products or services (as of principle, a person may advertise its assets/services by presenting the audience with the offer and only by the content thereof would the audience be convinced to choose that asset/service, not by suggesting that a competitors’ is/are worse).
In order to achieve the removal of the long – time effects of a potential damaging comparative advertising, the national competent authority is entitled to compel the company to publish (newspaper, online, television) the minute (or court decision) by which it was sanctioned for not complying with this obligation regarding the comparative advertising.
Main principles regulating the gambling advertising, as per the legislation in force
In accordance with art. 1*2 of Government Emergency Ordinance no. 77/2009, advertisment for gambling activities which are authorised on the national territory must observe the principles mentioned in art. 10.3 of GEO 77/2009, namely must protect minors and vulnerable persons to gambling addiction (considering the principles of Responsible Gambling).
In all promotional materials, it must be posted the serial number of the license held by the gambling company, interdiction of minors to participate to gambling activities and the National Gambling Office logo.
Advertisments, publicity or promotional activities carried out by the company in its own premises or webpages are not considered advertising materials.
In accordance with article 26 of Governement Emergency Ordinance no. 77/2009, it is forbidden to promote or advertise gambling activities that are not licensed in Romania.
Contraventional sanction for not observing the said interdiction consists of fine between 50.000 -100.000 Lei and complementary, seizure of all financial benefits resulting from the contravention (it would be the case of the price collected by advertising company, in case they would promote gambling activities or a company that doesn’t hold the relevant license issued by the Gambling Authority).
Advertisment, marketing campaigns and promotions are allowed on the webpage of the company without any prior approval, while for the promotional campaigns (during which additional prizes than the ones offered as result of the game) which are performed outside the webpage or premises of the licensed companies the company must obtain prior approval of the Gambling Authority), if the modality of awarding the prizes is similar with the modality used for gambling purposes.
This condition does not apply for the advertisement (such as brand or product advertisement), as they do not imply the offering of any additional prizes.
Targeting the commercial advertising of gambling activity in Romania, the following main principles must at all times be observed by both the on-line licensed companies and by its affiliates:
i) The protection of the underaged persons and the prevention thereof from accessing gambling games;
ii) The ensuring of the integrity and the transparency of the operations that are performed by and through the organizers of gambling games as well as an equitable gambling system that is permanently supervised and verified from the perspective of the security and the correctness of the performed activities;
iii) Prevention and the combating of the criminal activities that can be performed by the means of these types of games;
iv) Development and implementation of programs that harbours the players against the gambling addiction.
