The draft affects the gambling sector in Spain
Draft Royal Decree on commercial communications for gambling activities.
The draft Royal Decree was first notified to the European Commission in 2015 under number 2015/0186/E.
The draft Royal Decree was notified again under number 2017/0578/E.
On this occasion, a third version of the aforementioned draft is being notified, which has modified its title.
This version of the Royal Decree, now notified again, consists of a preamble, thirty-seven articles grouped under four titles, six additional provisions, three transitional provisions, a repealing provision and three final provisions.
The preliminary title ‘General provisions’ sets out the purpose of the Royal Decree, namely implementing certain provisions of Law 13/2011 of 27 May 2011 in relation to commercial communications and the policies on responsible gambling and consumer protection. It also specifies both the subjective and objective scope of application, the objective scope covering all gambling activities conducted under State jurisdiction. Lastly, it introduces various definitions and provides a context for institutional collaboration and coordination between the authority responsible for regulating gambling and other relevant public bodies and organisations.
Title I ‘Commercial communications on gambling activities’ starts with the provision relating to the implementation of legislation set out in Article 7 of Law 13/2011 of 27 May 2011, going on to cover the various aspects related to advertising, sponsorship and all other forms of commercial communication for gambling activities. Chapter I thus contains the legal framework governing commercial communications and the general principles to be followed with such communications, including various mandatory ethical principles. Chapter II contains specific provisions, which affect certain forms of commercial communication, such as sponsorship or vouchers and other promotional initiatives or the prohibition of celebrities or public figures in commercial communications, free gambling applications or advertising exclusion systems; Chapter III contains specific provisions according to the different advertising channels offered. Chapter IV includes provisions to promote the co-regulation mechanism.
Title II ‘Active information and user protection policies’ deals with the implementation of regulations for the provisions laid down in Article 8 of Law 13/2011 of 27 May 2011. In this regard, and in addition to the existing measures, a series of specific implementation mechanisms in this area has been included. Thus, in addition to a general provision on corporate social responsibility, a series of obligations and implementation measures to be applied by gambling operators has also been introduced, with the aim of preventing, detecting and, where applicable, reducing afflictions such as gambling addiction or dependence or other risks or problems associated with gambling. In addition, the regulatory and control powers of the competent State authority have been enhanced and various ways for operators to collaborate with the Administration have been planned.
Title III refers to the supervision, inspection and control system. Firstly, this title implements the provisions of Law 13/2011 of 27 May 2011 as regards the requirements for ceasing communications or providing information, and the interaction between other supervisory bodies. In addition, the role of the bodies responsible for gambling supervision within the penalties system arising from gambling and audiovisual legislation is laid down. Mechanisms for links between the penalties system and the recognised co-regulation systems are described too, with the aim of making these systems more useful and effective. In particular, gambling operators’ duty of care with respect to the actions of businesses they are associated with is also specified.
The first of the additional provisions refers to the special conditions for the participation of certain underage persons in National Lottery draws (taking account of the established practice and tradition). The second repeats the special statutory arrangements for the supervision of the Organización Nacional de Ciegos Españoles (National Organisation of the Blind in Spain) by its supervisory board (Consejo de Protectorado), as well as certain specific details relating to the advertising this organisation produces about its various gambling activities. The third and fourth additional provisions include similar advertising conditions for public-interest or charitable activities other than gambling that may be carried out by the State lotteries operator Sociedad Estatal Loterías y Apuestas del Estado or by non-profit organisations or foundations formed by or linked to gambling operators. The fifth additional provision determines the specific regime for the communication of mechanisms and protocols for the detection of high-risk behaviour and the protocol in the event of detection by the year 2020. Finally, the last additional provision determines that operators have reasonable time to comply with the provisions on advertising of trademarks provided for in this regulation that are not owned by them or by the group to which they belong.
Moreover, the transitional provisions set out the need to adapt the existing co-regulation systems to the system in the Royal Decree. Sponsorship contracts and advertising campaigns associated with celebrities or public figures are also to be adapted.
Finally, in the first final provision, certain provisions of Royal Decree 1614/2011 of 14 November 2011 are amended, all of which are related to the purpose of this regulation, the clarification of which has been deemed necessary. The second final provision empowers the Minister for Consumer Affairs to implement the provisions of this Royal Decree. To conclude, the third final provision provides for the entry into force of this regulation, which is set for 1 July 2020.