Edited by Lawyer Francesca Sarallo
The fight against pathological gambling finds its primary legal source in Article 7, paragraph 4 of Legislative Decree 158/2012, known as the “Balduzzi Decree,” which imposes a ban on gambling advertising during television and radio broadcasts, theatrical and cinematographic performances aimed at minors, and any other form of advertising through any channel that explicitly incites the public to engage in gambling. In case of violation of this ban, a financial penalty ranging from €100,000.00 to €500,000.00 is foreseen.
The most recent legal provision on gambling advertising is offered by the so-called “Dignity Decree,” under Chapter III “Measures to Combat Gambling Addiction,” which, except for the provisions of the aforementioned Balduzzi Decree, provides a comprehensive ban on direct and indirect advertising related to gambling. Article 9 states: “Any form of advertising, including indirect advertising, related to games or bets with monetary winnings, regardless of the medium used, is prohibited, including sporting, cultural, or artistic events, television or radio broadcasts, daily and periodic press, publications in general, billboards, and the internet.” In paragraph 3 of the same article, it is established that the Authority responsible for imposing and issuing sanctions is the Communications Regulatory Authority – AGCOM, which, authorized by the same decree, is the authority responsible for implementing the decree. Thus, with a resolution issued on April 26, 2019, it published guidelines that, contrary to the provisions of the decree itself, seem, as often reiterated on this point, to completely empty Chapter III of the mentioned decree.
In fact, according to AGCOM, the mere informative communications provided by legal gambling operators do not fall within the scope of the regulation in question. Therefore, advertisements that explain and describe a promotion dedicated to players are allowed, provided that certain precautions are respected, such as using only descriptive language and informational messages and avoiding any “imperative” message (“Open an account,” “Deposit,” “Hurry up”) by replacing it with informational language (for example: “Learn more,” “Visit the website,” “More information”).
Let’s take, for example, the case of a website authorized for online gambling that, in order to attract a new pool of users/players, wants to promote registration on its site by offering a specific bonus upon registration. Such advertising, although indirectly inducing gambling, can, with the proper precautions in its linguistic content, avoid violating Article 9 of the Dignity Decree while still promoting its gambling platform.
Indirect advertising, harshly prohibited by the Dignity Decree, has been transformed into a simple “information functional to a conscious gaming choice” by AGCOM. At first glance, this may seem to conflict with the nature of the decree itself, but on closer examination, it turns out to be the appropriate solution, not only to suppress the incitement to gambling through the “ban-lack of knowledge and information-awareness” approach by entrusting operators in the sector with a social function and responsibility in the fight against gambling addiction but also, and above all, to curb the use of illegal gambling. In fact, enforcing the Dignity Decree strictly would undoubtedly have impacted the legal gambling market, and by prohibiting authorized operators from self-promotion, the pool of potential users would have been dangerously exposed to the illegal gambling market, thus favoring the illegal mediation and collection of gambling activities, ultimately removing the latter from the control of monopolies.
The perceived contradiction in the implementation of the Dignity Decree, accused of having emptied the decree itself, seems instead to lead to a development that is anything but unfavorable to the fight against pathological gambling. This approach considers the advertising tool as the primary instrument aimed at educating the player and thus as the first step in preventing pathological gambling.
