The Supreme Court (TS) of Spain has nullified several articles of a royal decree pertaining to the commercial communication of gambling, which seeks to limit online betting advertising, citing concerns that certain limitations or prohibitions outlined in the regulatory framework lack adequate legal justification.
Specifically, the High Court has annulled Articles 13 (sections 1 and 3), related to promotional activities for new clients, Article 15, concerning the appearance of celebrities in advertising, and Article 23 (paragraph 1), imposing a general prohibition on commercial communications through information society services.
Additionally, Article 25.3, regarding advertising on video-sharing platforms, and Article 26 (sections 2 and 3), restricting advertising on social networks, have also been annulled.
This decision stems from a partial acceptance of the appeal lodged by the Spanish Digital Gaming Association against the regulatory text, which was approved in November 2020, during the tenure of Alberto Garzón as the Minister of Consumer Affairs.
In their ruling, the judges of the Contentious-Administrative Chamber emphasized that the contested royal decree lacked sufficient legal basis to impose restrictions that affect “the very essence of commercial advertising” aimed at attracting new customers.
They argued that a blanket prohibition on such promotions without specific targeting of harmful or vulnerable groups cannot be considered a proportional measure. Regarding the limitation on the appearance of celebrities in commercial advertisements, the court deemed it as lacking legal coverage and being excessive.
Similarly, the general prohibition on disseminating commercial communications through information society services was found to be inadequate, except when such communications are within dedicated gaming platforms.
While the annulled articles have been set aside, the court upheld others, rejecting arguments raised by the association. It affirmed that including messages about the harmful effects of gambling in commercial communications is within the scope of legal provisions aimed at consumer protection and responsible gaming.
The court also found no excess in establishing mechanisms for detecting risky behavior and implementing protocols to mitigate it, indicating support for measures promoting responsible gaming practices.