The unbridgeable gap of the Italian gambling advertising and sponsorship ban

Article 9 of the so-called Dignity Decree (Decree-Law No. 87, dated 12 July 2018, converted with amendments by Law No. 96 of 9 August 2018) prohibits advertising, sponsorship and all other forms of communications with promotional content relating to gambling. The rationale of the blanket ban is to fight against gambling addiction and to strengthen protections for consumers and players, particularly for vulnerable groups – pathological players, minors, and the elderly.

On 26 April 2019, the Italian Communications Regulatory Authority (Autorità per le Garanzie nelle Comunicazioni, hereinafter, AGCOM) published Resolution no. 132/19/CONS, which included the long-awaited guidelines on the methods of implementation of the ban set forth by article 9 of the Dignity Decree. The resolution provides interpretative clarifications regarding the subjective, objective, and temporal application of the ban.

On the objective scope of application, AGCOM makes it clear that any form of advertising, even indirect, such as sponsorship or communications with promotional contents about gambling, is prohibited. In addition to traditional forms of advertising, “the following should be considered prohibited commercial communications, for example: product placement; distribution of branded gaming product gadgets; the organisation of events with prizes made up of branded products; prize events as defined and qualified by the presidential decree of 26 October 2001, No 430; editorial advertising; direct and indirect advertising by “influencers”.

As regards the temporal application, the ban fully entered into force on 14 July 2019, since the advertising contracts concluded before the publication of the Dignity Decree had been excluded from the scope of the prohibition for one year only.

As regards the subjective-territorial scope of application, AGCOM states that the prohibition of advertising gambling applies to the gambling operators as contractors, the media channel, and the organizers of the sponsored event, activity or initiative, who have a registered office, including secondary offices, in Italy and that “The prohibition also applies to persons with registered offices abroad, if: (i) they have received the license to offer gambling from the ADM; or (ii) they have been authorised to provide audio-visual media services in Italy”.

In other words, AGCOM lacks authority over any person with only registered offices abroad who do not have any Italian license or authorization for gambling and/or providing media services. So while the gambling operators duly licensed by the Italian gambling authority Agenzia delle Dogane e dei Monopoli (ADM) have all acted to comply with the ban and the new set of strict guidelines, it should be clear that there still is an unbridgeable gap in the national advertising and sponsorship ban for gambling.

Specifically, as regards television channels, AGCOM may not prevent the re-transmission, in the Italian territory, of television broadcasts coming from another EU Member State. Any attempt of the AGCOM to enforce the ban towards these persons could be easily challenged as conflicting with the audiovisual media services directive (EU) 2018/1808 of the European Parliament and of the Council dated 14 November 2018.

That Directive provides for the “country of origin” principle for commercial communications, including those for gambling. The Directive explicitly states that “Measures taken by a Member State to enforce its national consumer protection regime, including in relation to gambling advertising, would need to be justified, proportionate to the objective pursued, and necessary as required under the Court’s case-law. In any event, a receiving Member State must not take any measures which would prevent the re-transmission, in its territory, of television broadcasts coming from another Member State.”

So, despite the national advertising ban, Italian consumers can be reached by gambling operators unlicensed in Italy. Commercial television broadcasts that originated in another Member State can be retransmitted in Italy without regard to their promotion of gambling.

This gap in enforcement seems unbridgeable. It has heavy negative consequences: for the gambling licensees in Italy, first, since they will lose their competitive advantage of having taken been licensed by ADM in Italy and acting lawfully within the Italian territory; second, for the Italian State, since it will miss the carrying out of the principles and aims of the national legislation on gambling, whose goals were to channel the demand of Italian consumers into legal and secured licensed offering and to contrast that to illegal gambling operators. Last but not least, negative consequences will be faced by Italian punters – particularly vulnerable groups – to the extent that they are reached by unlicensed gambling operators.

Considering the above, it is time to ask if this ban is the right way forward or needs some remedies.