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Published on CHAMBERS GLOBAL PRACTICE GUIDE 2021 - GAMING LAW 2020 (practiceguides.chambers.com), Contributed by Avv. STEFANO SBORDONI

Trends and Developments

Contributed by: Stefano Sbordoni (all rights reserved)

The Alternative Compliance: Advertising Bans and “for Fun” Activities

Article 9 of Decree-Law 87/2018, entitled “Disposizioni urgenti per la dignità dei lavoratori e delle imprese” (ie, urgent provisions for the dignity of workers and enterprises), prohibits advertising, sponsorship and all other forms of communication with promotional content relating to games or bets with cash prizes. This law was amended by Legislative Decree 96/2018.

The AGCOM guidelines

Paragraph 3 of Article 9 states that, pursuant to Law 689/1981, the competent authority for the imposition of sanctions referred to in this article is the Authority for Communications Guarantees (AGCOM).

With the passing of Decree-Law 87/2018 and Resolution No 132/19/Cons, AGCOM issued its guidelines, in which several points are clarified.

The first and most relevant fact is that bans exclusively concern activities related to games with cash prizes (“play for money”); in view of this, “for fun” activities shall, by default, be considered excluded for the purposes of the application of this provision.

The AGCOM guidelines cover, in detail, all aspects relating to the promotion of games with cash prizes, the legitimacy of which may be tried directly by AGCOM on an individual case basis and will depend on the intended purpose.

Consequently, many operators ask themselves: is there a sustainable business model based upon the AGCOM guidelines, aimed at promoting and advertising a portal of games inspired by sports betting in a “for fun” mode?

On close inspection, it could be said that, substantially, a “for fun” game inspired by sports betting generates an indirect interest in “for real” websites, but should not itself be considered as a problem; even if a more restrictive interpretation of the AGCOM guidelines may deem this effect as punishable, a possible solution in the same guidelines can be found.

An additional observation is the fact that the client base for a “for fun” website is, or can be, extremely compatible with that for “for real” websites; could this be considered as a challengeable fault according to the decree? On the other hand, it should be said that any “for fun” sports game with a challenge mechanism (without a money prize) could naturally interest those users who love betting.

Allowed marketing activities

To have a correct and reliable interpretation, it is crucial to highlight that, given the strict nature of the provisions contained in the decree, any explicit and direct hyperlinks tagged from a “for fun” website to any other website offering “for real” games (with money prizes) are strictly forbidden.

In light of the above, the allowed marketing activities can be further analysed. To have a better understanding of the safety area covered by these activities, and quoting the AGCOM guidelines, it can be noted that the following activities are excluded from the prohibition: “corporate social responsibility communications, such as, for example, information campaigns on games that are totally banned and on those allowed but prohibited for minors, on the risks to which ‘problematic’ players are exposed, on the values related to legal gambling and the policy on legal gambling, on the risks of usury associated with pathological gaming, the activation of training courses on ludopathy dedicated to gaming operators, the arrangement of precautionary measures in favour of problematic players (for example through the creation of online platforms dedicated to offer users help in case of compulsive gambling), without exposure of the brand or logo”.

Assuming that a “for fun” platform can be defined as offering a “bet without a gamble”, and shall be supported with informative content on the risks of a pathological drift, according to the decree, its sustainability is determined by the following paragraph of Article 7 of the AGCOM guidelines: “the usage of a trademark identifying, in addiction to games with cash prizes or gambling services, additional activities with autonomous nature, provided that no ambiguity on the object of the promotion exists and that this (promotion) does not compare any elements referring to the game (with a money prize), except for the mere denomination of the operator”.

Considering the margin of interpretation that the AGCOM guidelines allow, what is certainly allowed shall be distinguished from what happens “de facto”.

Prohibited marketing activities

On the negative side, according to the decree and the guidelines, it is not possible to communicate promotions, bonuses or incentives regarding the game through newsletters, text messages, push alerts or any other means to the client base registered on a “for real” gaming portal.

Likewise, all communications about the offer of games, technical communications or B2B communications are permitted; in fact, the main Italian online licensees have been operating for a long time with promotional messages and playing incentives across both their “for fun” and “for real” client bases.

It should also be reiterated that the granting of bonuses relating to “for real” games – in the form of push alerts, calls for action, bonus prizes or game recharges – is explicitly prohibited.

Furthermore, the activities of private individuals (tipsters) who have customers in their private groups to whom they allow free credits for the “for fun” game to gain promotions/more subscriptions could be sanctioned by AGCOM.

Promotion of “for fun” websites

In conclusion, even if it is common practice for online licensees to release newsletters and issue push alerts, there is no adequate legal support for this behaviour; caution and promoting awareness of the possible risks on “for fun” portals may not be sufficient. In any case, the reputation and social responsibility aspects of the “for fun” game should always be properly highlighted.

To summarise, it could be said that it is possible to promote the following marketing activities related to a “for fun” website on Italian TV channels:

•“for fun” odds comparisons;

•challenges (in “for fun” games) between and against VIPs;

•suggestions from “for fun” tipsters; and

•prizes related to any contest authorised by the Ministry of Economic Development.

In addition to the above, in the field of communications, even if connected to “for real” websites, the following could be considered:

•a “for real” odds comparison;

•B2B communications (“work with us” and similar); and

•teleshopping, but aimed exclusively at the conclusion of the gaming contract.

In other words, a mere execution of the game itself without any reference of a promotional nature.

It is certainly interesting to look at the established market practices that have been steadily taken on until now and that involve “concrete cases” of similar commercial arrangements implemented by other Italian online gaming licensees.

Particular attention should also be given to the data protection issues. All “for fun” portals must have a registration page on which the user will be asked to enter the data necessary to open an account for fun (name, surname, email, password), and it is recommended that the user declares, through the ticking of the relevant checkbox, that they have read and understood the privacy and cookie policy of the website, with optional checkboxes for their consent to the use of this data for marketing and profiling.

Conclusion

In relation to the sanctioning activities of AGCOM, it is certainly of high interest to keep and analyse press news and operators’ reports.

In any case, it would be advisable to have sound support from the competent legal offices, and ensure that any content, any form of promotion and any informative space is examined and approved in advance.

The adoption of such business model, if implemented in the manner and with the approach suggested, could be considered sufficiently compatible with the provisions of Decree-Law 87/2018 (the “Dignity Decree”), as defined in the AGCOM guidelines.

In support of this model, it is appropriate to highlight the social component of “for fun” and “bet without a gamble” gaming, but also the responsible component and the strongly recreational component of these types of gaming: challenges among friends, challenges with VIPs, and content that is in contrast to risky “for real” games.