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This week, the Directorate General for the Regulation of Gambling (“DGOJ”) published the most frequently asked questions (“FAQs”) about Royal Decree 958/2020, of November 3, on Commercial Communications for Gambling Activities (“RDCC”). These FAQs aim to respond to the most controversial interpretative concerns arising from the approval of the RDCC in early November.

The most significant interpretative developments included in the FAQs are as follows:

1. The RDCC allows gambling operators to disseminate the following videos from their accounts and channels on social networks or video sharing platforms:

  • Videos about sporting events, as long as they are purely informative, i.e., if they report how the game or event is going (e.g., the highlights of a football game);
  • Interviews with athletes, as long as they are independent interviews unrelated to operators;
  • Sports reporting, as long as the information is strictly sports related.

The above communications will not qualify as commercial communications. However, operators should try to remove from the videos and messages any image that would associate the informative content with the operators’ brand, product or activity.

2. GIFs sent by operators will qualify as commercial communications. Therefore, operators will not be allowed to disseminate cartoons addressed to minors or to use public figures or celebrities in these commercial communications using GIFs.

3. The notion of public figures or celebrities includes persons assisting the commentator of an event, who may only make commercial communications if they are commentating the event at some point; and remain subject to the restrictions provided in article 15 RDCC.

4. Only existing customers with an account open for more than 30 days whose identity has been verified with documentation can be offered promotions. Also, the RDCC leaves room for sending commercial communications about promotional activities to any existing customers, as long as these communications clearly state that only customers fulfilling the above requirements may access the promotions.

Note that certain customers must not be sent these communications, based on their specific circumstances, which include: (i) customers registered in the General Register of Gambling Access Prohibitions (RGIAJ) managed by the DGOJ; (ii) customers who have exercised their self-exclusion right with the relevant operator; (iii) customers classified as having high risk behavior according to the detection systems and protocols provided in article 34 RDCC; (iv) customers who have obtained an increase in the deposit limits of their gambling accounts within 30 days following the entry into force of these limits; (v) customers who have requested a refund related to communications offering them customized promotions intended to prevent the withdrawal of funds from their accounts.

5. The FAQs clarify the interpretation of the rules on the dissemination of commercial communications in media services regarding (i) pool betting, instant win cards and prize bingo (article 20 RDCC); and (ii) contests (article 21 RDCC), as exceptions to the general restriction of commercial communications from gambling operators to the 1 a.m. to 5 a.m. slot. (article 18 RDCC).

Therefore, commercial communications in media services about pool betting, instant win cards and prize bingo are restricted to the 1 a.m. to 5 a.m. slot, in addition to (i) the time restrictions for the protection of minors provided in article 7.2 of Act 7/2010; and (ii) the advertising slots immediately before or after children’s programs. These exceptions will only apply if the operator has no specific license subject to the 1 a.m. to 5 a.m. slot limit.

6. Remarkably, the FAQs provide that the restrictions of article 23.1 b) RDCC (regarding the use of third-party websites to post gambling advertisements) will not enter into force until May 1, 2021. According to the FAQs, until that date it will be allowed to disseminate commercial communications from websites and apps not necessarily focused on providing information or contents about gambling activities and sporting or horse racing events.

Consequently, websites and apps focused on reporting gambling activities and sporting or horse racing events must not implement the necessary mechanisms to comply with the restrictions of article 23.1 b) RDCC until May 1, 2021.

Also, from May 1, the link used by websites or apps dedicated to reporting on sporting or horse racing events must be small and for information purposes only. In order not to qualify as commercial communications, links (i) must not include any reference to any gambling operators; and (ii) should have a neutral wording, using terms like “betting” or “betting information.”

7. There is another significant development regarding restrictions on commercial communications made through search engines. According to the FAQs, these restrictions will not enter into force until May 1, 2021.

From that date, these commercial communications will only be allowed if searches include words or sentences directly related to the gambling activities defined in Act 13/2011. For example, the DGOJ considers that advertising resulting from searches for “online games,” “videogames” or “fun” will not be allowed.

Commercial communications in these media must also include messages on safe and responsible gambling and the exclusion of minors.

8. The FAQs confirmed that commercial communications on social networks other than in the 1 a.m. to 5 a.m. slot will be allowed as long as they are posted on the operator’s profile and accessible by (i) social network users following the operator’s accounts and channels; (ii) users who have shown an active interest in gambling activities as defined in Act 13/2011; and (iii) users registered as customers of the relevant operator.

The above will not apply if the relevant social network also qualifies as a video sharing platform.

Authors: Mònica Ferrer and Albert Agustinoy

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