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Several provisions of the Spanish gambling advertising ban have been invalidated through a decision of the Supreme Court that might have an echo effect in other European jurisdictions that adopted similar restrictions.
The Spanish Supreme Court has issued a ruling declaring certain articles of the Spanish Royal Decree 958/2020 on commercial communications of online gambling activities (“RD 958/2020”) null and void.
In particular, the following Articles have been declared null and void:
- Articles 13.1 (prohibition of promotions to engage new customers) and 13.3 (requirements/criteria for promotions). The lawsuit argues that Article 13(1) entirely and unconditionally prohibits the possibility of directing promotions to attract new customers. Also, it considers that Article 13(3) restricts the possibility of making commercial communications related to promotions. The Court Ruling considers that there is no legal coverage to establish this limitation that affects the essence of commercial advertising, aimed at offering and promoting the product or service to attract new customers. Thus, it concludes that Article 13(1) and (3) should be annulled.
- Article 15 (appearance of persons of public relevance or notoriety in commercial communications). This Article is also challenged for lack of sufficient legal coverage to limit the appearance of persons or characters of public relevance or notoriety in commercial communications. In this sense, the Supreme Court considers this prohibition lacking legal coverage. Thus, Article 15 of RD 958/2020 is annulled.
- Article 23.1 (prohibition to disseminating commercial communications by gambling operators in information society services). The Supreme Court considers that this limitation has no legal coverage, and it is not enough to invoke the protection of minors. Also, it indicates that it restricts the possibility of directing commercial communications to those who already use the web pages or applications intended for gambling. Therefore, it concludes that it should be annulled.
- Article 25.3 (requirements for offering commercial communications through the video-sharing platform). The Supreme Court understands that this limitation lacks legal coverage given its general scope. Therefore, it concludes that it should be annulled.
- Article 26.2 and 3 (restrictions on offering commercial communications through social media). According to the Court Ruling, this limitation, like the previous ones, lacks legal coverage in the regulations in force when the regulation was issued and should, therefore, be annulled.
Articles 12, 18 to 22, and 24 of the RD 958/2020 were also under review by the Supreme Court. However, their nullity has not been considered.
The Court Ruling is not subject to appeal, meaning that it has effects after its publication, which occurred today, 10 April 2024. It is essential to bear in mind that the rest of the provisions within the RD 958/2020 are fully applicable, and therefore, this Court Ruling does not imply a total invalidation of the Spanish gambling advertising ban. However, the decision significantly impacts the Spanish market and potentially in other jurisdictions like Italy, which also adopted similar restrictions.
We will see whether other European courts will consider the arguments made by the Spanish Supreme Court. This decision might become a game-changer, overturning the legislators’ tendency to impose heavy restrictions on gambling advertising.
On a similar topic, you can read the article “Italian Gambling Advertising Ban: € 1.3 M Fine Against a Major Social Media“.
Authors: Paula Gonzalez, Elisa Lorenzo and Andrea Fernandez from DLA Piper Spain
