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A bulletin circular from the Ministry of Finance might remove exceptions to the Italian gambling advertising ban, but is this course of action legal and binding?
The current scenario on the Italian gambling advertising ban
The Italian gambling advertising ban came into force in July 2018 (Read on the topic of the article Italian gambling advertising ban in place and now?). The applicability of the prohibition to existing advertising agreements operated from July 2019, after the expiry of a one-year transitional period.
During this period, AgCom, the authority in charge of enforcing the Italian gambling advertising ban,
- adopted some guidelines to clarify the scope of the ban, excluding from its scope informative communications, such as odds and bonus comparisons, but more recently
- sent a report to the Italian Government outlining its concerns about compliance with the Italian Constitution and the EU principle of freedom to provide services of such a broad gambling advertising ban.
But the soap opera is not over…
The potential initiative of the Government against exceptions to the Italian gambling advertising ban
According to the press, the Italian Ministry of Finance is now considering adopting a bulletin circular that instructs gambling license holders to stop any communication relating to gambling, including informative communications.
Under Italian law, a bulletin circular is not a piece of legislation and is not binding on courts and companies. It is just an administrative instruction given to a public officer.
The Italian Government is trying to argue that Italian licensed operators would need to comply with it since they are bound by the gambling license agreement entered with a public authority (i.e., ADM, the Italian gambling authority), regulating their Italian gambling license. The bulletin circular also provides sanctions up to the suspension of the gambling license in case of a breach. This measure does not consider that any primary law or term of the license agreement does not prescribe such a sanction.
We have the following scenario
- AgCom expressly excluded the applicability of the ban to some scenarios and even challenged the legality of the primary law; and
- The Italian Ministry of Finance that wants to introduce a stricter regime with a measure that is not legally binding; and
- A more stringent regime that would (if binding, but it is not) apply only to Italian gambling licensed operators, leaving unlicensed operators free to operate.
What is the risk of potential challenges?
The bulletin circular is not yet in place, and hopefully, it will not. Also, the Italian government recently collapsed and either there will be new elections before the end of the year, or a transitional government will be in place up to mid of next year.
In this scenario, gambling operators are finalizing their communication strategy for the upcoming football season. The level of risk of challenges changes daily, depending on the political scene. But there is no doubt that any action taken against a gambling-related advertisement or communication would lead to significant disputes.
My top 3 recommendations on the Italian gambling-related communication strategy
Given the current uncertainty, I suggest that, at least in the short term,
- adopt a cautious approach with informative communications relating to gambling products, also softening the language and avoiding any call to action;
- if you are launching a non-gambling related product/service, avoid any connection with the gambling offering; and
- build your defense to be ready to deal with potential challenges.
