SWITZERLAND Law and Practice Contributed by: Simon Planzer and Florian Furger, PLANZER LAW
9. Advertising 9.1 Regulatory/Supervisory Agency
9.4 Restrictions on Advertising Advertising restrictions apply to licensed operators. According to Article 74 of the Gaming Act, gaming operators may not advertise in an obtrusive or mis- leading manner, and advertising may not be directed at minors or persons who have been barred from gam- bling. The Gaming Ordinance further details what mis- leading and obtrusive practices mean. According to Article 77 (1) of the Gaming Ordinance, advertising messages are considered misleading, in particular, if they give distorting information about the chances of winning or possible winnings, or convey the impression that: • knowledge, ability, skill, or other characteristics of the player influence the chances of winning, without this being the case due to the nature of the game; • the chances of winning are increased by longer or more frequent play; • money games are an appropriate means of solving financial or personal problems; • participation in gambling is an alternative to a working life; or • increased participation in gambling is an appropri- ate means to compensate losses already incurred. According to Article 77 (2) of the Gaming Ordinance, the following, in particular, shall be regarded as obtru- sive: • telephone sales activities; • sales activities in residential premises or their immediate vicinity, on public transport, and at marketing events related to excursions or similar events; • personally addressed advertising via electronic channels without the possibility of opting out or unsubscribing; and • advertising by means of push messages based on the electronic localisation of a mobile device of the player or other forms of personally addressed advertising via electronic channels based on such localisation. Pursuant to Article 74 (3) of the Gaming Act, advertis- ing for games not licensed in Switzerland is prohib-
The ESBK has regulatory oversight over the casino sec- tor, and Gespa has regulatory oversight over the lottery and betting market on behalf of the cantons. The same powers apply accordingly in relation to advertising and the regulatory oversight of it. Finally, it is possible for the Federal Office of Communication ( Bundesamt für Kom- munikation , or BAKOM) to have regulatory oversight as well in certain circumstances involving broadcasters of Neither the Gaming Act, its ordinances, nor the Fed- eral Act against Unfair Competition define the term “advertising”. The Swiss judiciary rightly noted that Swiss law did not define advertising and accord- ingly referred to a definition provided by the Federal Commission on Fair Trading ( Lauterkeitskommission ): “Commercial communication shall mean any measure taken by competitors or third parties who systemati- cally influence a majority of people in their attitudes to particular goods, works, services, or business rela- tionships for the purpose of concluding or preventing a transaction” (Judgment of 15 June 2017 of the Cour de Justice de Genève: ACPR/397/2017, pt 4.2). In a decision in 2024, the ESBK offered some guidance on how it interprets the notion of “advertising”. 9.3 Key Legal, Regulatory and Licensing Provisions TV, radio, or internet programmes. 9.2 Definition of Advertising In order to be able to conduct casino or large-scale games, a licence/authorisation is required in accord- ance with the requirements of Articles 8 and 22 of the Gaming Act. One of the key regulatory require- ments concerns the composition and submission of a security concept ( Sicherheitskonzept ) and a social concept ( Sozialkonzept ). The way a licensed operator wishes to communicate commercially and responsibly with its customers and potential customers should be addressed in the social concept. Articles 22 (1)(i), 74, 131 (1)(b) and (c) of the Gaming Act and Articles 27 (2) and 76–78 of the Gaming Ordi- nance deal with advertisements. The key provisions will be dealt with further in the following sections of this guide.
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