Ban on advertising, Agcom: ‘Saved skilled press and responsible gaming’


Ban on advertising, Agcom: ‘Saved skilled press and responsible gaming’

Published the Agcom guidelines on the application of the provisions of the Dignity decree concerning the ban on gaming advertising that the industry had been waiting for six months by now. Various communication opportunities are safe.

“Notices of corporate social responsibility, danger factors to which the so-called “problematic” players are exposed, values related to legal gaming, information about legal gambling, risks of exploitation associated with pathological gaming, activation of training courses about gambling addiction reserved for gaming operators, preparation of cautions towards problem gambler (for example, through the creation of online platforms dedicated to users in order to offer help in the case of compulsive gambling), without displaying the brand or logo”, are escluded from the ban on advertising laid down in article 9 of the Dignity decree.
This can be read in the Guidelines on the implementation conditions of Article 9 of the decree law 12 July 2018, n.87, containing “Urgent provisions for the dignity of workers and businesses”, converted with amendments by the law of 9 August 2018, n.96, approved with a resolution by the Autorità per le garanzie nelle comunicazioni and with reference, indeed, to the article concerning the ban on advertising of gaming with cash prizes.

OTHER EXCLUSIONS – In reiterating that the purpose of the rule is “to strengthen consumer protection and achieve a more effective opposition to pathological gambling disorder”, the Guidelines underline that also “the organization of fairs on paid gaming only addressed to the operators of the field”; “the use of the brand that identifies, in addition to gaming services with cash winning or gambling, additional activities, having independent nature, provided that there is no ambiguity about the subject of the promotion and there aren’t elements evoking gaming, except for the mere name of the supplier” and also “teleshopping of goods and paid gaming services if both of the following conditions are met: a) tv paid gaming offer represents the object of the concession for the activity of the offer of paid gaming released by the Agenzia delle dogane e dei Monopoli; b) teleshopping is exclusively aimed at the conclusion of the gaming contract, consisting of the mere execution of the gaming itself and doesn’t contain any reference or promotional nature” are excluded from the ban. However, promotional value of teleshopping is presumed if it is transmitted within a mainstream or semi-mainstream television schedule” are excluded from the ban. Also “business-to-business commercial communications, including those distributed in the skilled press” are excluded.

VERIFICATION – The verification of the alleged violation hypotheses is carried out “according to the procedural rules set out in Resolution No. 581/15/Cons, of 16 October 2015, containing the ‘Text of the procedural regulation concerning administrative penalties and commitments” and “for carrying out the supervisory activity the Authority makes use of the cooperation of the Agenzia delle dogane e dei Monopoli, according to the ways that will be defined by a subsequent memorandum of understanding”. During the investigation, “the Authority relies on the cooperation of the Guardia di Finanza”. Furthermore, “the Authority undertakes to promote forms of co-regulation, providing for the obligation, for the managers of social networks and blogs, to remove advertising”.

THE PURPOSES OF GUIDELINES – As stated in the premises to the Guidelines, this guidelines are implemented in the art. 9 of the decree and are intended, “within the primary reference regulatory framework”, to “coordinate the new rules with the complex sectoral legislation and with the constitutional principles and the European Union”. The reason for the prohibition, Agcom explains, is to be identified “in the fight against gambling addiction and in strengthening the protection of the consumer/player, with particular reference to vulnerable groups (pathological players, minors, old people)”.

THE FIELD OF APPLICATION – Premises in the Guidelines also define the scope of application of the ban on advertising. It is applied, from a subjective-territorial point of view, “to the subjects identified by article 9, paragraph 2 of the decree, having their registered office, including secondary offices, in Italy” and, also, “to the subjects with registered office abroad, if: they have received the concession for the offer of paid gaming in Italy by the Agenzia delle dogane e dei monopoli; they have been authorized to supply audiovisual media services in Italy”.
As for the objective scope of application, in confirming that “any form of advertising, even indirect, sponsorship, or communication with promotional content of gaming with cash prizes” is forbidden and how they are considered “prohibited commercial communications, as an example: product placement; the distribution of branded gadgets of gaming products; the organization of events with prizes consisting of branded products: prize contests as defined and qualified by the d.p.r. 26 October 2001, n.430; editorial advertising; direct and indirect advertising by influencers”, Agcom highlights as “given the reason of the rule and the mandatory nature of the ban, neither the prior consent given by the player/user to send commercial communications regarding paid gaming nor a conclusive behavior in the sense of determination to play can’t have any exonerating effectiveness”.

Furthermore, “the distinguishing features of legal gaming are not included in the ban, only if they strictly identify the place where the relative activity takes place (for example: mere operating signs or domains of online websites)”. Neither “Communications of a mere informative nature provided by legal gaming operators are included on it. In particular, “information limited to the characteristics of the various gaming products and services offered, where released in the context in which paid gaming service is offered” is not to be considered advertising.

Still focusing on the objective scope of application, Agcom points out that “the informative services for comparing shares or commercial offers of the various competitors are not to be considered advertising, provided they are carried out in compliance with the principles of continence, non-misleading and transparency” and that ”free indexing services using algorithms directly provided by search engines or marketplaces (eg Apple Store, Google Play), allowing the gaming operator to have a better positioning in the search results of the user, once the latter has already entered the specific query relating to the paid gaming in the search engine or in the marketplace are excluded from the application of the ban”. Furthermore, “logo or reference to gaming services present on the window transparencies of the shops offering paid gaming, as well as the mere display of the winnings made at a point of sale offering gaming services are permitted only if carried out in ways, including graphics and dimensions, that aren’t a form of induction to the paid gaming”.

Finally, “advertising and any other form of commercial communication relating to events other than the paid gaming offer taking place inside casinos or gambling halls is permitted only if there is no promotion, even indirect, of paid gaming. In order to evaluate the promotional nature of the paid gaming offer, the following elements are taken into consideration, as an example: the free nature of the event, the presence, in the place where the event takes place, of services, gadgets, logos regarding paid gaming, the emphasis that is given in the advertising of the event to elements evoking paid gaming. All forms of communication imposed by the law or by the administrative concession provision are also permitted”.