The law decree providing for the Italian gambling advertising ban was adopted, but a number of questions opened up as to its scope and legality.
The Italian government adopted the law decree providing for a total gambling advertising ban. However, when does it apply and for how long?
When is the gambling advertising ban applicable?
The law decree providing for the gambling advertising ban is technically binding from the 14th of July 2018, but it provides that
- for sponsorship agreements and any other type of communication of promotional content, it is applicable from the 1st of January 2019; and
- in relation to ongoing agreements, the previous gambling advertising regulations apply for a year (i.e. up to 16 July 2019).
My view is that “any other type of communication of promotional content” includes any type of advertising. Additionally, the law decree provides that the existing gambling advertising regulations are still applicable which shows that in the intention of the Government some types of gambling advertising should be allowed, otherwise existing gambling advertising regulations would not be meant to regulate anything.
The consequence of the above is that the ban as of today does not apply to anything… Also, the law decree still needs to be ratified by the Parliament which might either implement changes or even cancel it.
Is the gambling advertising ban legal?
Even if we are able to argue that from the 1st of January 2019 the ban would be applicable to some gambling advertising activities, it should be considered that:
- this is a law decree which is an urgent measure that was not urgent since a transitional period of up to 1 year was granted. Therefore an abuse of the regulatory instrument of the law decree took place;
- this is a technical regulation that was not notified to the European Commission with the required 3 month “stand still” period which is provided by the EU Directive 2015/1535; and
- this is a measure that is basically completely banning online gambling because online gaming operators can market their services only through remote channels of communication. Therefore if no advertising whatsoever can be performed, they cannot make the public aware of their services and therefore they cannot do business. This is a disproportionate limitation of the freedom of doing business provided by the Italian Constitution and of the EU principle to provide services.
The hope is that the Government will understand the mistake and go back to the existing gambling advertising regulations that if enforced would already set very stringent restrictions to gambling advertising.