Following the overhaul of Malta's gaming regulatory framework in August 2018, gaming operators as well as third parties involved in marketing such as operators' gaming services need to be mindful of the new rules targeting gaming commercial communications.
Indeed gaming commercial communications are now regulated by the Gaming Commercial Communications Regulations (Subsidiary Legislation 583.09, hereinafter referred to as the "Regulations") and the Requirements as to Advertisements, Methods of Advertising and Directions applicable to Gaming Advertisements as amended by ACT XVI of 2018 (Subsidiary Legislation 350.25 hereinafter referred to as the "Requirements").
These legislative amendments aim to:
- create an environment where gaming advertisements and marketing initiatives are socially responsible, and
- ensure that minors and other vulnerable persons are protected from harm and/ or exploitation.
What is and is not covered
When we speak of commercial communications we mean any "text, images, sound or any other medium transmitting information, designed to promote, directly or indirectly, the goods, services, image or brand of a person pursuing a licensable gaming activity, and for the avoidance of doubt, this also includes product placement and any emerging advertising techniques, and "advertisement" and "promotion" shall have the same meaning".
Advertisements via social media account portals held not only by the gaming company itself but also by third parties are covered by the new rules.
Sponsorship is also covered and must be limited to text, logo and imagery that serve the exclusive purpose of identifying the gaming company. Activities where the majority of the audience is reasonably expected to be composed of minors cannot be sponsored, as are televised programmes that have or are expected to have particular appeal to minors or vulnerable persons. The only exemption applies to communications which have the sole purpose of informing the public of an opportunity for employment, or for an educational purpose, as long as these communications do not include any reference to gaming services.
Broadcasts on television stations are not permitted between 6:00 am and 7:00 pm, and broadcasts between 7:00 pm and 6:00 am are not permitted during, immediately prior to or after children's programmes, or programmes directed at, or likely to be of particular appeal to children. Similar rules apply to broadcasts via radio stations.
What you can't do
As a general rule, gaming advertisements cannot be issued or distributed in any public places or on public transport in Malta with the exception of authorised gaming premises, tourist locations such as airports, seaports, hotels and holiday complexes (excluding bars and restaurants), gaming specific conferences/ events, the premises of operators, or newspapers or magazines, amongst others.
The new rules provide that commercial communications must not:
- portray, condone, or encourage behaviour that is criminally or socially irresponsible or that could lead to financial, social or emotional harm, or directly or indirectly encourage anti-social or violent behaviour.
- make any suggestions that gaming can be a resolution to social, educational, professional or personal problems, an alternative to employment, a solution to financial concerns or a form of financial investment;
- portray gaming as socially attractive or suggest that it enhances personal or professional qualities or is a way of gaining control, superiority, recognition or admiration. Similarly, the portrayal of gaming in the context of toughness/ resilience, or as indispensable or taking priority in life is contrary to law;
- suggest that solitary gaming is preferable to social gaming;
- suggest that skill can influence the outcome of a game which is purely a game of chance,
- provide false information about the chances of winning, or
- exploit cultural beliefs or traditions about gaming or luck;
- make any reference to instantly available consumer credit services, or other ways of providing credit to players;
- tarnish the goodwill and reputation of another gaming company.
In addition advertisements must not be directed towards minors or vulnerable persons, encourage these persons to play a game, feature minors, appeal to these persons in any way, or exploit the susceptibilities, aspirations, credibility, inexperience or lack of knowledge of these persons, or present gaming as a sign of maturity or move to adulthood
Finally, operators can not send unsolicited communication and can not send solicited communications to persons who have requested to stop receiving such communications, or who are undergoing a period of self-exclusion.
What you must do
Commercial communications must clearly display the name of the respective gaming company and a reference to the fact that the company is licenced by the Malta Gaming Authority ("MGA").
Furthermore educational, responsible gaming messages are to be prominently displayed within all advertisements.
Consequences of a breach
Breaches of the above rules might mean, at best, that you will have to modify, suspend, retract or terminate the offending communication but could also expose you to administrative sanctions as well as eventually criminal proceedings.
The MGA may also issue an administrative penalty of up to €25,000 for every breach, and/ or an administrative penalty not exceeding €500 for each day during which the breach persists.
Operators also risk having a sanction published by the MGA.
Whilst Maltese legislation makes it clear that the same rules and regulations apply equally to advertisements via social media account portals held by the gaming company itself or third parties, the question remains as to how this data will be collected by MGA? Authorities such as the United Kingdom's Advertising Standards Agency (ASA) are now implementing technology to collect data on advertisements targeting minors, in the form of child 'avatars', in order to monitor advertisements via the internet and social media sites in the gaming sphere. It remains to be seen whether the MGA will also implement similar technology to enforce these new rules.
Furthermore, one needs to be sure that a particular social media post is actually an advertisement and not a recommendation because individuals are free to give recommendations in relation to services they have utilised. Notwithstanding, parties must be careful not to disguise an advert as a recommendation as this would fall foul of the regulations. It is therefore advisable for third parties to disclose any connections with the gaming company in question, and whether that third party has been remunerated for the particular social media post.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.