SPAIN Law and Practice Contributed by: Alla Serebrianskaia, Marta de Francisco, Sara Lao and Laura Llorca, Asensi Abogados
This new interpretation has raised significant concern among operators, who have argued that conducting a live videoconference with an employee for each user entails excessive operational and financial costs. They also point out that modern technological, biometric, and digital onboarding tools are significantly more reli- able, with a minimal – if not non-existent – margin of error. Consequently, discussions have begun with SEPBLAC to explore more efficient and technologi- cally advanced identification procedures. For the time being, SEPBLAC has maintained its posi- tion requiring live video identification and asking the industry to implement such processes. Nevertheless, it remains to be seen whether more flexible alterna- tives will be approved in the near future. Contrary to what happens in the UK, for instance, in Spain there is no specific regulatory or supervisory agency for advertising. Despite this, in the case of online gambling at the fed- eral level, the DGOJ supervises compliance with the applicable advertising rules by the gambling operators and sanctions them if they breach those regulations. For audiovisual communication service providers ren- dering services to gambling operators, the authority to launch proceedings and to sanction lies not only with 9. Advertising 9.1 Regulatory/Supervisory Agency Article 2 of General Advertising Law 34/1988 defines advertising as “any form of communication made by a natural or legal person, public or private, in the exer- cise of a commercial, industrial, craft or professional activity, in order to directly or indirectly promote the hiring of movable or immovable property, services, rights and obligations”. Royal Decree 958/2020 of 3 November 2020 on commercial communications for gambling activities defines commercial communications as “any form of advertising carried out by a natural or legal person, public or private, disseminated through any media or the DGOJ but also with the CNMC. 9.2 Definition of Advertising
format, meant to promote, either directly or indirectly, the gambling activities defined within the scope of application of Law 13/2011 of 27 May 2011, or the entities that carry out such communications. Broad- casting of game draws or the purely informative dis- semination of their results shall not be considered commercial communications”. 9.3 Key Legal, Regulatory and Licensing Provisions The key legal provisions can be divided into the fol- lowing groups. Operator Licensing Gambling operators must be duly licensed by the reg- ulator to advertise their products. According to Article 7.1 of the Gambling Act, to carry out gaming activities on audiovisual programmes, news media or websites, gaming operators must have an authorisation (ie, the corresponding gambling licence). The same is true at a regional level. Advertising Providers’ Requirement to Check Licensing Any advertising third-party provider must confirm that its client (gambling operator) is duly licensed accord- ing to Article 7.3 of the Gambling Act. This involves verifying that the advertiser, whether a media entity or service provider, confirms their client’s legitimate licensing from the DGOJ. Infringements in the Gam- bling Law fall into two categories: • unauthorised promotions, sponsorships, advertise- ments or intermediary actions concerning games under this law, regardless of methods used, and breaches in compliance with permit conditions and existing rules; and • the failure to fulfil requirements for information or cutting off the provision of services as required by the DGOJ and directed towards payment service providers, audiovisual communication service pro- viders, information society services or electronic communication providers and social media. Both infractions are qualified as serious infractions and are therefore subject to fines of between EUR100,000 and EUR1 million and to the suspension of activity in Spain for a maximum period of six months.
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