The Spanish Supreme Court may send the case against Spain’s gambling advertising ban to the Constitutional Court, where it could sit for years in legal limbo before any final decision is made.
Decree 958/2020, implemented in November of 2020, puts severe restrictions on gambling advertisements in the county.
JDigital and the Media and Information Association (AMI) rallied together against the decree, bringing a case before the Supreme Court. They argue that its scope is unconstitutional for a decree and that restrictions of such nature need to be implemented by law.
It would appear that the Supreme Court agrees, and today summoned the involved parties to make their case before they decide whether to turn the question over to the Constitutional Court.
The transfer of the case is based on the possible unconstitutionality of Article 7 of the Gaming Law, as it may violate Articles 38 and 53 of the Spanish Constitution, which protect basic rights, including free communication.
The involved parties have ten days to present their arguments on the possible unconstitutionality of Article 7.
JDigital and the AMI filed their case against Royal Decree 958/2020 in January 2021, saying that it would “leave gambling consumers defenceless and unprotected” and could make gambling addictions worse.
They specifically highlighted the fact that advertising from legal companies ensures that players stay in the legal market rather than playing with offshore operators.
Of the decree’s many stipulations, the limitations linked to internet advertising have drawn the most criticism.
It states: “Operators must have tools in place to ensure that their advertising is not directed at minors and that they have mechanisms to block or hide advertisements. Likewise, operators may only carry out online advertising through their portals or social media profiles, provided that it is targeted at their followers and that they give their consent.”
In addition, broadcast advertisements are only allowed between 1am and 5am and celebrities cannot be featured in ads outside of those hours. Mail advertisements are not allowed and gambling companies cannot be featured on any of the branding of sports teams.
In light of the news, JDigital wrote: “We consider that the legislative initiatives promoted by the government, which further restrict the activity of authorised gaming operators, should take into account the ruling of the Supreme Court in order to avoid damages that are impossible to repair for the gaming sector.”
Santiago Asensi, a Spanish gambling lawyer and expert, cautioned restrained optimism at the news.
“This is not a ruling, just a court decision, but I would say that it is an unexpected ray of light in the middle of the current darkness. More than probably, a decision from the Constitutional Court on this subject might take years.
“Imagine that it takes three or four years for the Constitutional Court to make a decision, then for three or four years the Supreme Court is not going to rule. It’s going to wait to see what the Constitutional Court says. If during that time, the decree remains valid, the damages to the online gaming market would be tremendously serious.”
It is possible that an injunction or other legal avenues could be pursued to pause the decree if the case goes on for years, but uncertainty surrounds which avenue of legal recourse will be viable to the objecting parties.
For the next ten days, it is a game of wait and see.
The Directorate General for Gambling Regulation had not returned a request for comment as of this morning.
Additional reporting by Joe Ewens