Operators have welcomed the self-regulatory approach to advertising that is written into Brazil's sports-betting provisional measure, although it leaves companies trying to establish a presence in Brazil with more questions than answers.
According to the provisional measure emergency legislation, which was adopted on Tuesday (July 25), the Ministry of Finance will propose limited rules related to advertising, but Brazil's "National Advertising Self-Regulation Council (CONAR) may establish additional restrictions and guidelines ... and issue specific recommendations for communication, advertising, and marketing actions of fixed-odds sports betting".
In June, CONAR reached an accord with the Brazilian Institute of Responsible Gaming (IBJR), which represents leading international operators including Flutter and bet365, to work together to implement self-regulation within the sports-betting industry.
IBJR members in May agreed a code of conduct on responsible advertising, including a self-imposed ban on broadcasting ads during daytime hours, with an exception only for live sporting events.
Rafael Marcondes Marchetti, legal director at leading fantasy sports operator Rei do Pitaco and an IBJR member, confirmed that “IBJR guidelines will be the base for the advertising rules. However, it may be deeper discussed by a working group that involves IBJR, media groups, CONAR and even other players. It will be the beginning, but there will be changes.”
Brazil’s advertising industry has generally been governed by self-regulation, more so than direct government controls.
Advertising is overseen by CONAR, which is a membership body that does not have legal authority. Members can, however, be taken to traditional court.
“We have a history of self-regulating advertising,” said gaming lawyer Udo Seckelmann of law firm Bichara e Motta.
“This creates some uncertainty because there's a code of self-regulation, but it's not a law. So what are exactly the consequences if you don’t comply with it? But it makes sense for the gambling industry to establish the same.”
Seckelmann also said that with an industry that changes as fast as sports betting, particularly the online sector, having a code that is easy to change instead of a law that is not as malleable is helpful.
“We have some lawyers in Brazil, like myself, who don't see the problem of online casinos advertising in Brazil because although this is not yet legalised and regulated in Brazil, they are legalised and regulated in other countries [where they are licensed].”
Seckelmann said advertising of online casinos is, therefore, not considered illegal in Brazil.
“But we do not have any decision from CONAR, saying okay, you're free to advertise, etc. And this creates a kind of a legal uncertainty for casino operators. So I think with this self-regulation we will have a clearer view of what can be done and what cannot be done.”
Nothing will be certain or clear when it comes to regulation of sports betting, however, until the president of the Chamber of Deputies Arthur Lira, says so.
Lira, one of the most powerful people in Brazilian politics, has already influenced the direction of travel for regulation and caused a provisional measure to be delayed when he used it as a bargaining chip with President Luiz Inácio Lula da Silva to pass the government's tax agenda and approve key appointments.
Now, local outlet Veja is reporting that Lira and the Chamber of Deputies may plan to let the provisional measure expire and move forward with implementation via an accompanying urgency bill also introduced by the government, which Lira has more control over.
Industry sources confirmed to VIXIO that Lira is reportedly unhappy with the fact that the provisional measure was published at all, rather than waiting for the bill.
The provisional measure took effect immediately upon publication, but Congress will have 120 days to approve, reject or amend it.