Dignity decree: La Rosa, 'Defining the boundary between information and advertising'

The ban on games advertising established by the dignity decree has caused many questions, concerns and doubts of interpretation. The lawyer Rodolfo La Rosa, Counsel of Baker McKenzie explains them.

The essential characters (summarized below) of the ban on games advertising introduced last July through the so-called Dignity decree, immediately aroused a series of questions (and fears) for the operators of the sector. To name a few, we wondered how it is possible to conciliate the ban on any form of "indirect advertising" with the obligations assumed by the concessionaires of remote public games in the related agreements signed with the Agenzia delle Dogane e dei Monopoli in the field of the marketing of games exclusively through the selected channel (or channels) of distance communication, information to consumers and promotion of safe, legal and responsible gaming. For example, what is the information and content that concessionaires can now make available on their websites or send by email to registered users? And the institutional communication and information campaigns on legal gaming are to be considered allowed today? In other words, one of the needs that the market has already clearly indicated is that the boundary between the activities of dissemination of informative material to consumers aimed at ensuring a regular and informed access to games with cash prizes in controlled circuits (which should be and remain legal ones) and "indirect" advertising strategies, aiming to encourage active participation in such games (and which, in the spirit of the provision, could instead relapse in the absolute ban). In this regard, it should not be forgotten that, as also highlighted by the European Commission in its 2014 Recommendation on online gambling services, business communications on online gambling services can play an important role in guiding consumers towards legal and controlled offers. On the other hand, even more the fight against illegal gaming will continue to be effective, even more the protection that the provision of July wants to offer to Italian consumers will be effective. In this context, the role played by operators holding a concession in Italy will be important. They should be able to continue to implement and manage the activities and functions covered by the agreement through a sustainable business model, for the benefit of the variety and quality of the offer and, ultimately, of consumers (and of state revenues, why not). I like to read the new paragraph 6-bis of article 9 in this context, which seems to remind the regulator of the need to define a new balance between the elimination of risks related to gambling problem, the fight against illegal gambling and the pursuit of an adequate level of revenue for the state in the coming months. Much will also depend on the ability that operators will have (or will be allowed to have) to act as a unique, balanced and proactive partner in this process, which unfortunately suggest us how many of the market's questions will find their answer in court proceedings. WHAT THE LAW PROVIDES - For the strengthening of consumer protection and a more effective fight against gambling disorder, Decree Law no. 87 of 12 July 2018 (Dignity decree) introduced into our legal system a total ban on advertising for games with cash prizes and, more generally, for gambling. In particular, Article 9 of the aforementioned decree, converted into law on 9 August 2018, prohibits any form of advertising, even indirect, related to games or bets with cash prizes as well as gambling, carried out in any way and on any media. From January, the 1st, 2019, the ban also extends to sponsorships and to all other forms of communication of promotional content. For the advertising agreements in progress at 14 July 2018 - that is, at the date of entry into force of the decree - it is expected that the previous legislation will continue to be applied until the date of their natural expiration or, if earlier, on the date of 14 July 2019. The infringement of the above bans implies the administrative fine of the payment of a sum of 20 percent (it was 5 percent in the original text of the decree, then increased when the decree has been converted into law) of the value of advertising or sponsorship or, if lower, €50 thousand for each infringement. The authority for the guarantee of telecommunications is indicated as the authority responsible to the notification and to impose penalties. A new paragraph 6-bis has been added in Article 9 when the decree has been converted into law, by virtue of which the Government must propose, by mid-February 2019 (ie, within six months from the date of entry into force of the conversion law) , a total reform of public games in order to ensure the elimination of risks related to gambling disorder; fight illegal gambling and fraud against the tax authorities; and guarantee at least the invariance of the corresponding revenue.