Teodora Luca
Senior Associate
Mihai Luca Law Office
(Continued from previous issue)
From the principles of the provisions of art. 10 para. 3 of the Ordinance, in our view, those that might fall under the incidence of art. 12 are those concerning the prohibition of minors to participate in such activities, as well as those regarding the conduct of responsible gambling ( to be understood in this context as the need to protect vulnerable players against gambling addiction).
To ensure effective protection of minors from an activity that is prohibited to them is not about mere exposure of the ban on participation in promotional materials, but involves either adjusting their content so as not to arouse their interest or, broadcasting them/ transmitting them only inside locations or during time frames in which the access of the minors to the commercial is restricted.
Such an interpretation is confirmed by laws applicable to audiovisual communications, pursuant to which the principle of minors’ protection must govern any audiovisual commercial communication in any form and duration.
Analyzing the content of such communication (achieved under the rule of the old law), the National Broadcasting Council has found that sending a public message that urge participation in the game is unequivocal, during a time frame that allows it to be received including by the minor audience is illegal. Since the audiovisual legislation has not changed, it is possible that some of the materials currently promoted through these means might be considered non-compliant.
During the advertising material analyzed for 30 seconds, there were presented explicitly frames with people participating in gambling, urging unequivocal participation in the game, such as Play ____!
In the reasoning of the decision mentioned above, the authority noted that children are easily influenced in what their behavior is concerned and lack the correct representation of their own actions, given their reduced ability to distinguish, due to lack of experience, context in which by presenting gambling as a means of easy money or the direct urge to get into gambling contradicts the law regarding the protection of this category, regardless of its form or duration.
This form of promotion remained largely onto operators materials, gambling being often presented as a way of easy enriching or a way to get access to exclusive social environments. On the same note, inducements to gambling made by public figures, role models for the minors, their image association with gambling, accredit the idea that gambling lacks risks, as a result of the integrity warranty exposed by the celebrity.
It is obvious that such communications are not prohibited and may prove highly efficient for operators, but, taking into consideration the provisions of art. 12 related to the provisions of art. 10 para.3) of the Ordinance, we believe that access of the minors to such messages should be restricted.
As regards of the transposition of the principle of protection of people at risk of addiction to gambling, we consider that the organizer shall ensure the compliance with the prohibition to send promotional messages to players excluded temporarily or permanently, and respects the ban to include in the materials promoted publicly any kind of information on bonuses.
Special benefits, bonuses granted to participants by the organizer as provided in the regulations of the game can be promoted only in their own locations, on their websites or affiliates, or by sending electronic messages to players with active accounts in the database of the organizer.
This approach is designed to ensure to the potential client the correct criteria for deciding on participation in the game. Only after such decision has been adopted, the participant will have access to information on bonuses that he can benefit from and which will constitute, maybe, the criteria for selecting the company he that will develop a commercial relationship with.
In the first part of the stage analyzed, most of the operators of online gambling have focused their gambling promotion around bonuses granted, legally justified by the fact that the prohibition on promoting their bonuses, set out in the methodological norms, were not applicable to companies that conduct business under provisional duty. We have not shared this interpretation, considering that the application of these provisions in time will be evaluated depending on the moment in which the public communication was done and not depending on the time when the right to host gambling was granted.
However, we noticed the constant efforts of operators to comply in a short time and these messages were removed from public space.
Certainly, an important role in regulating public communication related to gambling activity pertains to the competent authorities (CNA or ONJN) which have legal means to eliminate messages whose content may be deemed offensive or not in conformity.
A special role belongs to the operators themselves, which can, combining the creative resources of marketing with the need for legal compliance can change public perception negatively associated with gambling, primarily through creating and promoting messages that put undoubtedly the activity in the area of entertainment activities without distorting the aim of the advertising action – generating long-term revenues.
