AgCom issued a fine for violation of the Italian gambling advertising ban due to billboards promoting the opening of a VLT room, raising interesting points with respect to the definition of the sanction.
The decision on violation of the Italian gambling advertising through billboards
The decision is significant because there had been no sanctions so far for the ban on Italian gambling advertising due to billboards. Previously, AgCom had mainly focused on online advertising.
Moreover, in the present case, AgCom opted to sanction both:
- the “owner of the medium of communication or destination,” which, according to the AgCom Guidelines on the Italian Gambling Advertising Ban, is the “owner of the property rights or the person who has the possibility of influencing the content or dissemination of the advertising message,” and in the particular case it was the company that operated the billboard advertising; and
- the “entity instructing the advertising service,” which, according to the Italian Guidelines on the Gaming Advertising Ban, is “the professional who enters into an advertising contract for the promotion of his or her goods and services,” and thus in this case the operator of the VLT hall.
This position diverges from a previous decision where AgCom did not sanction the gambling website that was being promoted. However, this decision could have been due to the fact that it was an unlicensed gambling operator located abroad. Indeed, the Italian AgCom Guidelines on the Gambling Advertising Ban limit the scope of the above provision to:
- companies with registered offices in Italy, including those with branch offices in Italy;
- operators licensed to offer gambling services in Italy by the Italian gambling authority if located abroad; and
- companies authorized to provide media and audiovisual services in Italy if located abroad.
However, as a general principle, the Italian Guidelines on the gambling advertising ban are for interpretative support only, and in case of conflict with the provisions of the Dignity Decree, the latter will prevail. Therefore, this limitation of the scope of the gambling advertising ban could be challenged.
A further point of reflection emerging from the decision concerns the calculation of the penalty. In fact, AgCom issued a single fine of 50,000 euros, for which the owner of the media and the principal of the advertising service are jointly and severally liable, even if the ad was published for more than one day. Again, this posizion is different from that taken in previous decisions when AgCom had imposed a fine of 100,000 euros for violating the ban on game advertising because the ad had been displayed for two days, which were considered as two separate violations to which the minimum fine of 50,000 euros was applied.
What are the main elements of AgCom’s decision that may be relevant to future challenges?
In light of the above, we can highlight that:
- the existence of an advertising agreement involving a consideration leads per se to the assumption of responsibility by different parties, but only and to the extent that AgCom may have jurisdiction;
- the method of calculating potential fines for violating the Italian gambling advertising ban is contradictory and may raise several grounds for appeal; and
- the investigative powers adopted in recent months by AgCom almost always follow up on reports received from competing entities.
The issue is quite relevant as the decision could further guide operators as to the scope of the ban.
On a similar topic, one can read “Google is not liable for violating the Italian gambling advertising ban.”