Fines for breach of the Italian gambling advertising ban were issued against a YouTube video content creator and Google as it has been hosting the challenged videos.
Italy’s Communications Authority (AGCOM) has jurisdiction over the Italian gambling advertising ban and issued
- A fine amounting to 700,000 euros against a video content creator for the promotion of gaming products and services through his website and through the creation of videos on his YouTube channels; and
- An order imposing a fine amounting to 750,000 euros against Google for allowing the distribution of video content on YouTube in breach of the Italian ban on advertisements relating to games with cash winnings.
These decisions are relevant since, with respect to the same challenged conduct, AGCOM sanctioned both the
- The “owner of the website of communication or of destination” that, according to the Italian Guidelines on Gambling Advertising Ban, is the “entity managing the site or the web pages,” i.e., the gambling affiliate that acted as the creator of the challenged video contents; and
- The “owner of the media of communication or of destination” that, according to the above-mentioned guidelines, is “the owner of the property rights or the entity that has the possibility to influence the content or dissemination of the advertising message,” i.e., Google through YouTube.
As already mentioned in a previous article, the fine is now a real and concrete threat against gambling affiliate websites, influencers, and content creators. Indeed, the Italian gambling advertising ban provides for joint liability between the advertiser and the media channel. In the past, AGCOM had been mainly after websites hosting challenged content, given the difficulty of reaching foreign affiliate websites, but the approach has not changed.
Which conduct was sanctioned for breach of the Italian gambling advertising ban?
Google was liable for the content appearing on the YouTube channels run by the affiliate acting as a YouTube content creator. According to AGCOM,
- the circumstance that it was granted to the YouTube gambling affiliate video content creator the status of “verified partner” made it responsible for ensuring that the channel did not publish illegal content;
- the alleged illegal conduct is proved by means of the videos uploaded weekly, where multiple gambling websites with cash winnings are promoted, also providing for the possibility of subscribing to an individual channel, paying directly to the provider of the video-sharing service through three different price brackets to which various advantages correspond; and
- YouTube videos inviting users to send their own videos showing gambling winnings so that the channel owners, after remuneration to the users, can broadcast the videos of the best winnings are made in breach of the Italian gambling advertising ban.
In parallel, AGCOM deemed that the YouTube video content creator was responsible for the breach of the Italian gambling advertising ban through the publishing of videos emphasizing the attractiveness of games with cash winnings, even suggesting how to access certain bonuses. Moreover, AGCOM considered that the invitation to subscribe to the YouTube channel implies the advertising nature of each content, excluding, therefore, the merely informative nature of the odds comparisons that are allowed.
AGCOM made clear that the provision of information on odds and bonuses in compliance with the principles of continence, non-deceptiveness, and transparency is allowed. But, AGCOM challenged that the video content creator does not limit himself to the comparative description of the odds or offers but plays with real money in a specific online game with cash winnings, also using the money donated by users through the platform.
Yet, AGCOM sanctioned the breach of the Italian gambling advertising ban even with reference to a pure English language YouTube channel, and it is difficult to understand the reasoning followed by AGCOM in such a case.
Which are the main takeaways for gambling affiliates and video content creators?
Based on the AGCOM’s arguments on the breach of the Italian gambling advertising ban by the video content creator and Google, the main points to consider are:
- It is irrelevant the existence of an advertising agreement in the strict sense since the general terms and conditions for partners/affiliates contain the essential characteristics for determining the penalty to be applied and where the content disseminated has a direct or indirect promotional value. Any different interpretation would risk debasing the useful effect and the ratio of the Italian gambling advertising ban. This circumstance implies an urgent review of the terms and conditions regulating the relationship with gambling affiliates and content creators in light of the Italian gambling advertising guidelines;
- AGCOM did not sanction the existence of gambling contents per se, but the promotional nature of the messages conveyed through the videos. Consequently, even if influencer gambling marketing is per se forbidden according to the Italian gambling advertising guidelines, it is allowed to provide information services related to gambling products in compliance with the principle of non-deceptiveness, continence, and transparency;
- An affiliation website shall not display advertising banners or videos related to gambling websites containing an explicit call to action and designed to induce the visitor/user to click on the relevant hyperlink and access directly to the relevant gambling website; and
- For the first time, the amount of sanctions has been multiplied due to the severity of the breach. This circumstance was due to the number of potentially injured persons (end users, potential customers, channel subscribers, etc.) and the undue economic advantages gained by both companies through the dissemination of the illicit content.
Such landmark decisions underscore how a review of the contents of gambling and affiliate sites as well as videos of content creators and claims published on third-party sites and channels of communication is pivotal to ensure that communication to the public on the features of offerings is compliant under the current regime on the Italian gambling advertising ban and also to avoid to face fines which are becoming increasingly higher.
On a similar topic, the following article may be of interest “How affiliates are impacted by the Italian gambling advertising ban.”