Legal note on the review of the Gambling Law
Today, Law 23/2022, of 2 November 2022, which amends Law 13/2011, of 27 May, on the regulation of gambling (“Gambling Regulation Law”), was published in the Spanish Official State Gazette (“BOE”).
The text submitted by the Spanish Congress of Deputies on 22 September 2022, compiled a total of 22 amendments by the Senate committees, but in the end none of them were successful. Consequently, the text submitted by the Congress is, in its entirety, the one approved by the Senate, so that the Spanish Gambling Law is amended with the following changes:
- supervision and protection of minors and gambling participants
In the explanatory memorandum of the Spanish Royal Decree 958/2020, of 3 November, on commercial communications on gambling activities (“RD Commercial Communications”), it was already indicated that one of its aspirations is to achieve an adequate level of protection for the most vulnerable groups. For this reason, the state sphere has been reinforcing the enforceability and material scope of the framework applicable to the advertising activities of all gambling operators and their actions in terms of safe or responsible gambling, the maximum expression of which (in the latter field) is expected to be finally achieved with the forthcoming publication of the Draft Royal Decree on safer online gambling environments on a national level and implementing the Sixth Additional Provision of the Spanish Gambling Regulation Law. The currently reform is based on the same premise and complies with the will that the current Spanish Government has been expressing.
To this end, the amendment to the Spanish Gambling Regulation Law adds, firstly, an article 7.bis on “General principles for the advertising, promotion and sponsorship of gambling activities“. Operators must make their commercial communications with a sense of social responsibility, prohibiting all commercial communications which:
- Encourage antisocial, violent, or discriminatory attitudes or behaviors of any kind.
- Incite humiliating, denigrating or degrading attitudes or behaviors.
- Associate, link, represent or relate gambling activities in a positive or attractive way with illegal behaviors or behaviors that is harmful to public health, as well as those that result in economic, social, or emotional harm.
- Discredit people who do not gamble or give social superiority to those who gamble.
- Include messages that devalue effort compared to gambling.
- Make explicit appeals to the recipient of the marketing communication to share with others the message intended in the marketing communication.
- Convey tolerance of gambling in educational or work settings.
- Suggest that gambling can enhance personal skills or social recognition.
- Include sexual content in marketing communications, linking gambling to seduction, sexual success, or increased attractiveness.
- Present gambling as indispensable, a priority or important in life.
- Present family or social relationships as secondary to gambling.
- Use graphic representations of money or luxury goods.
In addition, a section 3 is added to article 8 of the Law, which states that the Government will set up a General Register of Gambling Access Interdictions. To this end, the different regional authorities responsible for the corresponding gambling access prohibition registers are urged to sign collaboration agreements for the automated interconnection of the information systems of these registers.
- VERY SERIOUS INFRINGEMENTS STATE REGULATIONS
The incision “or of the Autonomous Communities” in paragraph c), point 2 of Article 13 of “The Operators” is deleted. Consequently, the Spanish Gambling Regulation Law now determines that it is not possible to hold a license and/or authorization to offer online gambling in Spain, if the natural or legal person, its partners, managers or administrators, as well as any other entity that forms part of the business group to which it belongs, has been sanctioned in a final decision for two or more very serious infringements, in the last four years, only for non-compliance with the State’s gambling regulations. Until now, Article 13.2.c) of the Spanish Gambling Regulation Law also included non-compliance with the gambling regulations of the Autonomous Communities.
- NEW FUNCTION ATTRIBUTED TO THE DGOJ
In the context of this regulatory framework, content is added to section 16 of article 21 of the Spanish Gambling Regulation Law (which was repealed), so that the Dirección General de Regulación del Juego (“DGOJ”) now also has the following function: «16. To protect at-risk groups of gamblers by assessing the effectiveness of measures on responsible or safer gambling aimed at these groups which, in compliance with the applicable regulatory obligations, must be developed by gambling operators». This strengthens the DGOJ’s capacity to assess the effectiveness of the measures on responsible or safer gambling required of operators as a result of the various regulatory developments (bear in mind that the Draft Royal Decree on Safer Online Gambling Environments at national level and implementing the Sixth Additional Provision of the Law on Gambling Regulation is due to be published shortly) aimed at strengthening the protection of at-risk groups.
- GLOBAL SPORTS BETTING MARKET RESEARCH SERVICE
The legislator indicates in the explanatory memorandum that one of the most concerning phenomena observed in this area is the fraud and manipulation of sports competitions, which affect the normal development of gambling-related activities and undermine the interests of its participants, thereby constituting one of the greatest threats hanging over sport, as it undermines its essential values and alienates fans and followers from its environment. One of the measures taken to combat this situation is the new Ninth Additional Provision, according to which the DGOJ will set up and manage the Global Investigation Service for the Gambling Market (“Investigation Service”). The purpose of this Investigation Service will be to prevent and combat fraud in the sports betting market and manipulation in sports betting competitions, by means of the appropriate exchange of information between its participants. The DGOJ will be responsible for the processing of the personal data collected for this purpose, explaining how its processing and transfer is to be carried out in sections 3 to 6 of the Provision.
The Investigation Service will be configured as an interactive and telematically accessible cooperation network, to which (i) the Consejo Superior de Deportes, Spanish sports federations, professional leagues and gambling operators (which will report any event they consider suspicious) and (ii) the Spanish State Security Forces and Corps and the Spanish regional police forces, will be able to adhere.
- NON-FUNGIBLE DIGITAL ASSETS, LOOT BOXES AND THE MECHANICS OF MONETIZATION IN VIDEOGAMES
With the incorporation of the tenth additional provision, it is established that the Government will draw up a series of guidelines (with the participation of the state-level gambling and videogames sector) to guarantee the safest use of non-fungible digital assets, loot boxes or the mechanics of monetization of the participation of videogames users. These guidelines should include, as a minimum:
- The regime for commercial communications for these products.
- The necessary consumer information regarding the risks of their use and abuse.
- The necessary security measures for proper storage.
- MODIFICATION OF OTHER SPANISH LAWS
The first final provision of the approved Law amends several articles of the revised text of the Spanish General Law for the Defense of Consumers and Users and other complementary laws.
We believe that this reform of the Spanish Gambling Law has been very timid and limited and that it would have been a good opportunity to address other important issues, some of which were suggested in the proposed amendments to the Law.
Xavi Muñoz Bellvehí
Blanca Pujol Salmons