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The Italian gambling advertising guidelines on the scope of the ban have been finally adopted by AgCom, which left some opportunities to exploit.
I already discussed the Italian gambling advertising ban and why I believe it is in breach of the Italian Constitution and of the EU principle of freedom to provide services (Read the article “Italian gambling advertising ban in place and now?“). A total ban on gambling advertising would be illegal and is likely to force the Italian gambling market to shut down, which the Government cannot afford.
Because of the uncertainty as to the scope of the ban, AgCom, the Italian communications authority that has no jurisdiction on gambling advertising, launched a consultation that now ended up into gambling advertising guidelines that hope to clarify the matter.
The Italian gambling advertising guidelines and their “grey” areas
I honestly feel “sympathy” for the role of AgCom on this matter. They are likely to have understood the mistakes of a law that cannot provide a full ban on gambling advertising. But their interpretation cannot go beyond what is provided the primary law.
The result of this difficult scenario is contained in guidelines that have a number of grey areas. In particular, the following activities fall under exemptions to the Italian gambling advertising ban:
1. The display of signs and domain names when it merely identifies the place where the activity is carried out
Does it mean that I can display them with no restriction on billboards and in any sort of advertisement or just at the entrance of a gaming hall/betting shop or on the website?
2. Informative communications provided by gambling operators, if provided “in the contest where the offering of the gambling service takes place”
This means that the information on a gambling website and customer support communications are exempted. But it is unclear why other types of CRM communications are, on the contrary, subject to the ban. How can operators otherwise inform their customers about their offering?
3. B2B communications and comparisons relating to odds/promotions on websites and TV channels
This is indeed good news for affiliation sites, but how broad is the exemption? Can I just compare my offering to what is generally offered by the market, or I need to name competitors expressly?
4. The usage of trademarks that identify not only gambling products but also further independent activities provided that there are no ambiguities as to the promoted product
Such an exemption is the most interesting. But its actual scope shall be tested in its implementation and on the position that AgCom will take for different lines of business of gambling operators.
5. Social and ethical communications that refer to a gambling operator as the promoter, without displaying the actual trademark and logo
The ambiguity of this provision pertains to the prohibition to reveal the brand and logo of the gambling operator, which in some cases might correspond to their company name.
Italian gambling operators shall reinvent themselves
The guidelines leave some areas of operation, but there is no doubt that marketing strategies created for other jurisdictions cannot anymore be just translated to be used in Italy. A tailored-made approach shall be necessary for the Italian market.
Also, pending potential legal challenges of the Italian gambling advertising ban as a whole, the timing is favorable for operators to “test” the guidelines which set general principles without a consolidated interpretation of AgCom on the matter since no decisions have been issued yet.
Operators adopting the first initiatives in the new regulatory environment might face the risk of having to deal with AgCom in order to explain why their approach is correct. But they could also enjoy a competitive advantage.
In the meantime, the ban still does not apply up to 14 July 2019 for advertisements based on contracts entered by 14 July 2018.