Dr Joerg Hofmann, Partner at Melchers Law, follows up his recent GI Huddle appearance with his second Gambling Insider column – which focuses on gambling advertising in Germany.
Since the beginning of the sports betting licensing procedure in January 2020, the topic of “advertising” has caught a lot of attention. This was mainly due to the fact the Interstate Treaty on Gambling, which came into force on 1 January 2020, introduced massive restrictions on gambling advertising, and at the same time left open numerous questions about its scope and extent.
Operators applying for a sports betting licence must include their own marketing concept as part of the licensing procedure. Under current law, the Regional Council in Darmstadt is responsible for reviewing these concepts. At least in theory. In practice, things turned out differently.
In the meantime, it had been decided at the level of the gambling regulators to commission an internal working group.Its aim was to prepare a framework paper for the assessment criteria to be used as a basis for the evaluation of the marketing concepts. Against this background, the Regional Council has postponed the examination of submitted concepts – which made sense, as there can be no binding examination without defined criteria. As of 1 January 2023, all responsibilities will be transferred to the new Joint Gambling Supervisory Authority of the Lander in Halle (Saxony-Anhalt). The operators are currently required to comply with the principles arising from the Interstate Treaty itself in the best possible way.
Neither the expected advertising directive nor the corresponding framework document
to be issued are yet available. Nevertheless, initial information recently became known from Saxony-Anhalt on the expected future restrictions and requirements, with regard to advertising for legal gambling. In detail, this concerns the following points:
- Non-time-controlled outdoor advertising, including advertising in facilities that are not only accessible to a certain or definable group of people (with the exception of sports facilities) is prohibited. Time-controlled advertising between 21:00 and 06:00 is permitted.
- Pursuant to sec.5(3) of the Interstate Treaty on Gambling 2021, no advertising on the radio or internet may be made for virtual slot machine games, online poker and online casino games between 6am and 9pm daily. Likewise, advertising solely for an umbrella brand under which virtual slot machine games, online poker and online casino games are offered – in addition to other licensed forms of gambling – is prohibited between 6am and 9pm, with the exception of umbrella brand advertising in sports venues.
- It already follows from sec.5 (3) sentence 3 of the Interstate Treaty on Gambling 2021 that advertising for sports betting with active athletes and officials is also prohibited. The brand ambassadors can thus no longer be recruited from an active sporting environment. The use of influencers in the context of sponsoring or advertising is also to be prohibited in future. This is likely to have far-reaching consequences for streaming and other social media activities.
- A separate section is dedicated to affiliate advertising. On the one hand, it is expressly regulated in the current Interstate Treaty that no variable (turnover in particular), deposit or stake-dependent remuneration may be agreed upon or paid for advertising for games of chance on the internet, in particular in the form of affiliate links. Thus, the international industry standards of usual contractual terms for the cooperation between affiliates and operators are to be substantially adapted.
- Advertising by or through affiliates that also advertise unauthorised gambling services is prohibited. Accordingly, affiliates may not make their services available to black market operators at the same time.
- The observance of general principles such as the differentiation of advertising from the editorial content of affiliates by labelling it as advertising is also required.
- As has been the case for a long time with advertising for licensed games of chance, in the future it will also apply to affiliates that the display of mandatory information on the prohibition of participation by minors, on the risk of addiction (examples: “Participation from 18; gambling can be addictive”), but also on the availability of operator-independent counselling and therapy, must be clearly visible in advertising by or through affiliates.
- Operators must continuously generate an electronic documentation of the time and place of its broadcast advertising for the past three months, transmitting this documentation to the competent authority upon request. In addition, continuous electronic documentation of all advertising on the internet, including details of third-party sites, affiliates, social media channels and the identity of the advertising partners over the past three months, is required and must be submitted to the competent authority upon request.
- It goes without saying that advertising for gambling services not licensed by the competent gambling supervisory authorities in Germany is still prohibited and is a criminal offence.