Opinion: The End of Italian Gambling Advertising?
Giulio Coraggio, head of the Italian gambling law group at DLA Piper, assesses the potential impact of the recently approved Baldazzi decree.
After several discussions and “negotiations” between the Government and gambling operators, the Italian Government has finally adopted the so called Balduzzi decree introducing gambling advertising regulations.
During the last months several draft laws had been submitted to the Parliament in order to ban or considerably limit gambling advertising. After having avoided a complete ban on gambling advertising, the Government adopted a decree that might not go too far from that. In particular, the main provision of the decree limits any type of advertising on the press, TV, radio and the Internet that can “create an incentive to the gambling activity or to exalt games”.
Based on a literal interpretation of this provision, from the 1st of January 2013 when these limitations will come into force operators might be prevented from performing any kind of advertising campaign. Indeed, any ad of a gambling website per se encourages to play on its platform and for instance the banner where a welcome bonus is promoted could be deemed to create a “incentive” to gambling.
Furthermore the scenario generates concerns among operators since according to the decree the fines for breach of gambling advertising regulations that are up to 500,000 can be applied both against operators and media owners on which the ads are shown. As a consequence, it is unlikely that any media owner (but including Google for instance) might accept to show a gambling ad without a prior favorable opinion of the Italian gambling regulator, AAMS.
AAMS will also become the gambling advertising regulator which is also surprising as so far a mere notification obligation of advertising campaigns was on operators and therefore AAMS will all of a sudden have to decide on the legality of gambling ads without having any case law or precedents to rely on.
The impression is that even the legislator did not have a clear understanding of the consequences of these provisions and the market itself is uncertain about their impact. A confirmation of that is the upcoming approval of a gambling advertising self-regulatory code which will govern gambling advertising together with the general advertising self-regulatory code and misleading advertising and unfair commercial practices regulations.
If there was a risk that gambling advertising is almost completely banned, the approval of a self-regulatory code would not make too much sense. Also, given the lack of case law on the new gambling advertising provision just approved by the Government there is the risk that an ad is deemed to be compliant with the self-regulatory code, but then considered in contrast with the terms of the decree.
AAMS is having internal consultations on the matter and hopefully they will issue some guidelines for operators on the scope of the newly approved gambling advertising provisions in order to grant a higher level of certainty to operators bearing in mind that the Parliament might introduce some changes to such provisions in the next 60 days when the decree is ratified. In any case the review of compliance of gambling advertising campaigns with Italian law now becomes more and more important.