The Spanish Supreme Court has annulled part of the content of decree 958-2020 relating to commercial and advertising communications for online gambling and betting marketing activities.
Some limitations or prohibitions established in the regulatory provision lack the necessary legal coverage and, therefore, are canceled. This is the case of articles 13 paragraphs 1 and 3 (promotion activities aimed at new customers); art. 15 (appearance in advertising for famous people); Art. 23 paragraph 1 (which establishes a general ban on the dissemination of commercial communications through information society services; art. 25.3 (advertising of the game on video sharing platforms); art. 26 paragraphs 2 and 3 (limits the possibility of advertising through the media and social networks).
According to the Court, there is “no legal coverage to establish this limitation which affects the very essence of commercial advertising, intended to offer and promote the product or service to attract new customers. A general ban with these characteristics does not allow its scope to be limited to a specific type of promotion that is particularly harmful or aimed at vulnerable groups, and therefore cannot be considered a proportional measure limited to offers and practices that are highly addictive and dangerous for groups at risk. .
“This limitation has no legal coverage and is not sufficient to invoke the protection of minors since it is not possible to limit advertising of general scope to an entire medium in case it could be used by minors.”
The ruling establishes that, although it falls within the freedom of enterprise, advertising is subject to limits, especially in a regulated activity such as gambling, where State intervention is justified by the protection of superior interests, such as the of minors and consumer rights. Furthermore, it is underlined that these limits must have sufficient legal coverage, and cannot be regulated by independent regulatory standards unrelated to the criteria established by the legislator.
