A restrictive market

On 3 November, the Spanish Government passed the Royal Decree on Commercial Communications, which was published in the Official Gazette (BOE) the following day. The Decree is divided into three titles: Preliminary Title with general dispositions; Title I regulating advertising, sponsorship and promotion of gambling activities; and Title II adding statutory regulations on responsible gambling and the protection of consumers, especially the protection of minors.

We outline below the main obligations in regard to commercial communications, sponsorship and promotion of gambling activities:

- Sponsorship on premises, sports teams or competitions, T-shirts or sports equipment is prohibited. Sponsorship is possible beyond the frame of these prohibitions. The existing sponsorship agreements were in force until 31 August, 2020. Any kind of promotion for the acquisition of new customers is forbidden, including the welcome bonus.
- A promotion targeted at existing customers is allowed (like a loyalty bonus) provided that the following two requirements are met: the client has a 30-day-old opened account, and has been verified by documentary evidence.
- Free games can only be offered to registered clients.
- The use of famous persons, whether real or fiction, is prohibited. However, for the existing publicity contracts in this regard, these commercial communications will be possible until 1 April 2021.
- The broadcasting of commercial communications through audiovisual media and during live sport events is limited to 1am to 5am. Likewise, commercial communications of any kind, broadcasted or posted, which are captured by an audiovisual broadcast, shall be subject to the same time restriction.
- Terrestrial commercial communications must comply not only with the Advertising Royal Decree and the national regulations, but also with the regulations regarding gaming advertising imposed by each autonomous region. Likewise, communications made for a certain sports sponsorship within sports facilities or published in magazines, newspapers or similar media specialised on gambling on a national level, will not be obliged to comply with the regional regulations on advertising, but only the national ones.
- Operators are prohibited from using trademarks or trade names which they do not own. It is worth mentioning that operators have a transition period of six months from the entry into force of the Advertising Royal Decree to comply with this obligation.

Commercial communications made through digital services will be permitted when referred to:

- Ads included on websites with an .es domain from authorised operators and on their mobile applications.
- Ads on webpages or apps which main activity is the offer of products and information relating to gambling provided that they have mechanisms to prevent access by minors and to broadcast messages about safe play;
- Ads on webpages or apps which main activity is to offer information on sports or horse racing using a specific section.
- Those resulting from search results. If those are from SEM actions, the key words used must be directly related to gambling.

Commercial communications sent by e-mail or other equivalent means those broadcasted as audiovisual commercial communications on video exchange platforms, like Youtube, with the following restrictions: they must have mechanisms to prevent commercial communications being addressed to minors; they must have mechanisms for hiding or blocking pop-up ads from their users; they must have mechanisms for controlling time slots.

They also refer to those broadcasted as audiovisual commercial communications on social networks. With the same first two restrictions mentioned above and a third outlining that they must have mechanisms to segment the target audience and be addressed only to persons who follow the channel of an operator, persons who have shown and interest or persons registered with an operator. Advertising agreements with tipsters are possible as well, yet they cannot be famous persons.

The Royal Decree entered in force on the following day from its publication on 5 November, however, there are many exceptions in this regard and many provisions which enter into force later. Here are some of the main obligations regarding consumer protection and responsible gambling polices. Note that these obligations have been in force since 5 November 2020.

- Gambling operators are subject to a comprehensive policy of corporate social responsibility. Likewise, they shall proactively inform consumers of the risks inherent in gambling activities and its consequences.
- Gambling operators shall designate a person responsible for safe gambling who will act as a point of contact with the Spanish Gambling regulator DGOJ, and who shall ensure the compliance with the responsible gambling polices.
- Gambling operators must have a direct link to information on safe gambling on their websites and mobile applications, named "JuegoResponsable" or "Juego Seguro", which shall be clearly visible. Likewise, they must have the following provisions clearly visible and identifiable: The prohibition of playing to minors, establishing the necessary controls to prevent access of minors to gambling activities and; the possibility of exercising the faculty of self-prohibition.
- Gambling operators shall enable a customer service telephone through which information and assistance on safe gambling shall be provided. This service shall be offered at least in Spanish and shall not be subject to additional pricing.
- Gambling operators shall establish mechanisms and protocols to detect risk behavior of registered users, and must communicate to the DGOJ before 31 January of each year: the updated version of the basic description of the mechanisms and protocols of detection; the protocol of action; the total number of people with risk behavior detected; and the actions carried out and the follow-up and effect on the same.
- When the gambling operator notices that a user with an active account is registered to the RGIAJ (General Register of Gaming Access Bans), the operator must proceed to suspend the user account.

The Royal Decree has the aim to pursue good gambling practices, to promote moderate and non-compulsive gambling attitudes and, especially, to protect minors and other groups of risk. All this, with the aim of preventing the potential adverse effects of gambling activities, trying to raise awareness throughout the society. However, it is undoubtedly an excessively restrictive framework and we hope that its application and interpretation by the DGOJ will be a little more flexible in doubtful cases. In this regard, it's necessary to clearly define the framework of what is allowed. The penalties applicable to this sector in Spain are extremely high, disproportionate in some cases, and, therefore, before the criteria and precedents are well established, we recommend that the operators verify any advertising action.