Spain’s Attempt To Control Gambling Advertising May Be Unconstitutional

Efforts to reduce the amount of public advertising related to gambling in may have hit a snag. The country s Supreme Court is debating an advertising prohibition, concerned that it may be unlawful in accordance with Spain s Constitution.

On September 1 of last year, the so-called Garzón Law entered into force. It regulates the advertising of gaming in the media, as well as in sports.

The royal decree that established the prohibition first appeared almost a year earlier. Gaming trade groups immediately began efforts to block it. With the Supreme Court s latest statement, those efforts may be paying off for the industry.

The third chamber of the Supreme Court took into account the appeal raised by the Spanish Association of Digital Gaming (JDigital) against the royal decree. It believes that the decree could possibly be contrary to the principle of reservation of law.

This is an intrinsic part of Spain s Constitution as it relates to the freedom to conduct a business. As a result, the chamber has forwarded the debate to the Constitutional Court to determine its validity.

The law does not provide criteria according to which the regulatory development of advertising must take place or the guidelines according to which the regulation may condition or limit the advertising that may be carried out by gambling operators, nor any indication or criterion on what can be considered proportionate or not, the Supreme Court order states.

Therefore, the court considers that this can be interpreted as a de-legalization of the matter reserved to the law. In addition, according to the interpretation, it may prevent lawmakers from having the power to establish limits on advertising – including gambling ads.

The chamber order states that, if the article is unconstitutional, the contested royal decree would lack sufficient legal coverage to regulate advertising in the game. If, on the other hand, it satisfies requirements as the constitution provides, the royal decree would have legal standing.

The debate may not end there, however. JDigital and other gaming industry trade groups have other reasons to block the law if this attempt fails.

The royal decree, approved on November 3, 2020, prohibits ads outside the hours of 1 AM to 5 AM. In addition, it provides for fines for operators of up to €1 million (US$1.01 million) and the suspension of business activity for up to six months.

Spain has a healthy , with a very low penetration of problem gambling. However, the global gaming environment is changing. Spain and a number of countries are working to reduce advertising and sponsorships from the industry.

The royal decree to ban gambling advertising received significant support from Spain s Minister of Consumption, Alberto Garzón. A member of the Communist Party of Spain and the United Left party since 2003, he serves as an MP representing that coalition.

For Garzón, it is not the same to prohibit gambling at a general level as limiting its ability to promote. Therefore, he said that the restrictions aim to reduce consumers chances of gambling to generate quick money in the middle of a crisis.

Likewise, Garzón asserted that the limits on gambling advertising will not lead to bankruptcy of either the media or sports clubs. While that is true, the ban also prevents consumers from distinguishing between legal and illegal platforms. In addition, it prevents the government from advertising the risks associated with gambling.