The Supreme Court of Spain has partly upheld an appeal by the Spanish Digital Gaming Association against Royal Decree 958, which included restrictions like bans on celebrity advertisements.
In November 2020, the Spanish Royal Decree No. 958/2020 will come into effect. By banning sponsorship agreements with gambling operators, the regulations aimed to limit minors’ exposure in Spain to gambling advertisements.
In response to the measures, the Spanish Digital Gaming Association Jdigital launched an appeal against Royal Decree. The Spanish Constitutional Court rejected this appeal in November 2023.
The Supreme Court, in reviewing the laws, has annulled some of the measures set out in the Royal Decree and partially upheld the appeal.
Several measures were overturned as a consequence, such as article 13 which deals with advertising aimed at new clients.
Spanish operators can now market to customers who are less than 30 day old. Now, operators can advertise their products in public places that are designated to sell lottery games.
The article 15 which prohibited the use of celebrities as advertising has been repealed. Prior to this, it was prohibited for those with “public importance and notoriety”, real or fictional, to appear in commercial communication.
The sections 1 and 3 of Article 25 which prohibit gambling advertisements on video-sharing platforms such as YouTube have also been repealed.
The Supreme Court also included sections 2 and 3 from article 26 in its decision. Operators will now be able to market on social media for all users older than 18.
“Several measures lacked legal cover”
The Supreme Court of Spain ruled that several measures in the Royal Decree were not legal and should therefore be overturned.
The Royal Decree No. 958/2020 stipulated that all advertising, on television, radio and YouTube was to be restricted between the hours of 1am-5am. The operator brands could only target their promotions at existing social media users.
Online age-gating and the ban on promotional bonuses were also restrictions. Advertising that targets verified customers was not subject to this restriction. Spain will also ban the use of celebrities for gambling advertisements and sport sponsorships in 2021.
In October 2022, a new law will be passed to restrict advertising by banning certain forms of communication. Referring to mental or emotional health, social status, and physical health are all examples.
Advertising that depicted money or luxurious goods was also banned. Illegal is to say that gambling should be a secondary priority to family or friendship.
The Supreme Court announced its decision against these measures by saying: “The ruling believes that advertising forms part of freedom of enterprise and has limits.”
The legislator has set out criteria for determining the limits of the law.
What still is banned in Spain?
The annulments did not include the article 12 regarding sports sponsorship. It is therefore still illegal for operators to use advertising or branding on events, products and services which can be seen by minors. Sponsorship of sporting events and broadcasts is also prohibited for operators. The sponsorship of sports facilities is also prohibited.
Supreme Court decision caught some people by surprise
The Supreme Court ruling is a major boost to Spanish operators’ efforts in acquiring new customers.
LOYRA Abogados is a Spanish gaming law firm that was involved in the historic ruling. They assisted one of the claimants. Patricia Lalanda is a partner in the firm and says that she was not expecting the good news.
Lalanda, a spokesperson for iGB, said: “We were surprised when we got the verdict, which was the partial upholding the appeal and annulling some most relevant articles Royal Decree 95/8/2020 regarding commercial gaming communications.
The Supreme Court was expected to follow the same path as the Constitutional Court. “After an order by the Constitutional Court stating that, with the amendment of Law 13/2011 regulating gambling, the constitutionality question had been resolved, all indications were that they would do so.” “But nothing could be farther from the truth. The sentence is definitive.”
The decision to not remove restrictions like sport sponsorships or time limitations means that Spanish operators still cannot advertise freely despite the many annulments.
Lalanda believes that the Supreme Court has overturned enough measures to prevent further efforts to annul them.
I do not think that the interests of gaming or other affected parties are now served by opening new avenues for fighting against the restrictions that remain in place.
