The Lazio Regional Administrative Court defined the exceptions within which communications relating to gambling do not fall within the Italian ban on advertising games with cash prizes.
AGCOM, the Italian communications authority, had fined an online newspaper for publishing an article containing an allegedly informative text, drafted similarly to a typical journalistic article, aimed, however, at promoting gambling products through a hyperlink to the WISECASINO.NET website.
Therefore, the company had been sanctioned as part of the first fine for breach of the Italian gambling advertising ban, which prohibits any form of advertising, including indirect, relating to games or bets with cash winnings and gambling, however, carried out on any medium.
The online publication appealed against the fine of € 50,000 imposed by AGCOM. In the same appeal, the Associazione Nazionale Stampa Online (National Association of Online Press) intervened as an adjunct to challenge AGCOM’s measure. In the appellant’s opinion,
- there is no direct connection between the link and the advertising content, since the contents of the article published and those of the page of the site “Wisecasino.net”, to which the link on the page of the newspaper referred, were not directed in favour of a specific online casino platform, having instead “an informative purpose regarding the digital platforms available on the network” ;
- the prohibition contained in the Italian gambling advertising ban would be contrary to the EU freedom of establishment and the freedom to provide services;
- the provision of the Italian gambling advertising ban would also contrast with the freedom of economic initiative under art. 41 of the Italian Constitution, the principle of legitimate expectations and the principle of proportionality under art. 3 of the Italian Constitution.
The Lazio Regional Administrative Court found that the last two grounds for appeal were not contrary to the rules governing EU freedom of establishment and freedom to provide services, since, as the plaintiff’s defence acknowledged, such matters may be limited when there is a need to protect mandatory rules of general interest. And this is what happened in Italy with the regulation on the advertising of games with cash winnings that the Italian legislator wished to adopt, derogating from EU law “for reasons of public order, public security and public health, expressly provided for by art. 52 TFEU, also applicable to freedom of services by virtue of art. 62 TFEU, or for imperative reasons of general interest, such as the protection of consumers as well as the prevention of incitement of citizens to excessive spending linked to gaming“.
However, what is particularly interesting is the analysis of the rationale for the prohibition carried out by the Lazio Regional Administrative Court in relation to the first ground of appeal, even if rejected. First of all, the Lazio Regional Administrative Court states that the case at hand (i.e. the publication of an article dedicated to the choice of online casinos and the presence of a hypertext link to a remote gaming site that does not hold an Italian concession) should be traced back to the following exceptions provided for by the AGCOM Guidelines on the Italian gambling advertising ban, i,e.:
- communications having an exclusive descriptive, informative and identification purpose of the legal gaming offer, functional to allow an informed gaming choice and
- information services comparing the odds or commercial offers of the various competitors.
According to the Lazio Regional Administrative Court, to determine the informative or non-informative nature of the communication, how the message is presented is of fundamental importance (e.g. the language used, graphic and acoustic elements, the context in which the message is broadcast). However, in the case in question, the Lazio Regional Administrative Court found that these elements of continence did not exist. Therefore the appellant’s conduct falls within the prohibited cases of indirect advertising, “since in this case, the exception of informative communications is not applicable“. The presence of a specific link, emphasized through colours and particular characters in evidence, so different from the rest of the text and therefore able to attract the reader’s attention, was not contested by the appellant company.
Finally, the Regional Administrative Court has found that have not even been provided information, within the online article, to the conscious operation of the game, nor have been indicated, for comparative purposes, information about the quotas or commercial offers of different competitors or bookmakers, which only could be used for comparison.
This decision is relevant because it clarifies the type of communications that do not fall under the gambling advertising ban.
On a similar topic, the article: “Google is not responsible for the breach of the Italian gambling advertising ban” may be interesting.