Germany

[DE] Discussion on Advertising Restrictions for Private Betting Services

IRIS 2006-6:1/13

Nicola Weißenborn

Institute of European Media Law (EMR), Saarbrücken/Brussels

After the ruling on the lottery by the German Bundesverfassungsgericht (Constitutional Court - BVerfG), interested parties are now debating its consequences for advertising law. The Landesmedienanstalten ( Land media authorities), as the regulators of private broadcasting, are currently discussing the different versions of the ruling with private broadcasters.

In its decision of 28 March 2006, the Bundesverfassungsgericht had ruled that the state's sports betting monopoly in the Bundesland of Bavaria was incompatible with the basic right to the freedom of occupation. Under the Gesetz über die vom Freistaat Bayern veranstalteten Lotterien und Wetten (Act on lotteries and betting organised by the Free State of Bavaria - Staatslotteriegesetz ) of 29 April 1999, commercial betting services may not be provided by private betting companies. The reasons for the ban include the need to fight gambling and betting addiction, to prevent gamblers from being cheated by betting companies and to protect them from misleading advertising.

However, the BVerfG decided that the ban on private companies could only be justified under constitutional law if the Act did in practice provide an effective means of combating addiction and gave the legislator until 31 December 2007 to revise the relevant provisions.

If the legislator wanted to retain a state betting monopoly, the law needed to be more clearly aimed at fighting gambling addiction and limiting people's obsession with betting. For example, the marketing of betting services should be restricted. In particular, advertising for such services should only provide information about the service rather than make it sound attractive. However, the Court ruled that, rather than a betting monopoly, if private betting companies were allowed to operate under certain legislative standards and controls, such a system would be in conformity with the Constitution.

Until new rules were adopted, the BVerfG stated that commercial betting services offered by private betting companies and agencies should remain prohibited by law.

At its meeting on 16 May 2006, the Direktorenkonferenz der Landesmedienanstalten (Conference of Directors of Land media authorities - DLM) said that it would only consider intervention by the Land media authorities against private broadcasters who broadcast advertising for private betting services as possible if the responsible administrative body had previously issued an enforceable order. Talks on this subject with the responsible Land authorities were under way.

With regard to new regulations governing advertising for betting services, the Verband Privater Rundfunk und Telekommunikation e.V. (Private Broadcasting and Telecommunications Union - VPRT) expressed reservations about a total advertising ban, since currently licensed betting services were important advertising partners for private media companies, spending well over EUR 10 million on advertising.