On October 20, Coljuegos published what could be understood as the regulation of advertising for games operated on the Internet, the “Advertising Resolution” after a particularly short (5 days) public consultation, and which, with more than 200 comments on the first draft, was published definitively without a second round of consultation.
The Advertising Resolution has a suspensive effect until January 2024 for current operators and with immediate applicability for new operators, this being a strange distinction that could affect equality and contractual economy.
This type of regulations that aim to solve or prevent a problem are usually accompanied by technical studies that identify what needs to be resolved, but in this case, the regulation does not present any technical study, nor does it base its decisions on figures to indicate the problem. It limits itself to establishing a hypothetical situation based on the overwhelming possibility of advertising, without pointing out what the problem is that is generated.
“That, given the overwhelming possibility of promoting and generating advertising through different physical and digital media, it is necessary to intervene in the scope of action of gambling operators with respect to the amounts, spaces and ways of advertising their respective gaming platforms. bets.”(sic)
Another lack of regulatory technique is the absence of definitions of the terms used throughout the Resolution, and those that are available are insufficient to understand concepts and statements that are included within the regulatory body.
It is striking how the Advertising Resolution (administrative act), a norm that within the Colombian legal system corresponds to those of lower normative hierarchy, exceeds its normative powers by attempting to regulate trademark law in Colombia. Trademark regulation is established in higher standards, international agreements—the Higher Standard on Industrial Property of the Andean Community—and the Political Constitution of Colombia.
The lower category standards must be consistent with the higher ones. The hierarchy of norms means that those of higher rank, with the Fundamental Charter at the top, are the source of validity of those that follow them in said hierarchical scale.
The purpose of this harmony is none other than to establish an order that allows regulating, according to the same axiological system, the different factual situations called to be regulated by the legal system. This is the connotation of the system that covers the order and that guarantees its internal coherence.
We find a contradiction with this hierarchical principle in article 5 of the Advertising Resolution, by attempting to limit the use of the brand of third parties that are not owned by the gaming operator or its business group. The wording of this article is ambiguous and contradictory with higher standards in trademark law. This continues when the rule prohibits mentioning or using another operator's brand. Currently in Colombia the national league is sponsored by an internet gaming operator.
These regulatory provisions clearly exceed the power of Coljuegos, since it is not an authority on trademarks and patents in Colombia. Regarding advertising budgets, the Resolution established investment limits based on the monthly/annual GGR, which today establishes that the higher the result, the more advertising budget can be had. In the case of new operators, it puts an investment ceiling for the first six months, which means that, if you are new, you will hardly be able to have an aggressive advertising campaign.
The rule in general terms has several regulatory defects that will surely be analyzed by the operators, above all, it should be reviewed by the same regulatory body, with the understanding that the provisions included will generate a decrease in the gaming industry operated over the internet. and therefore a decrease in the income that is injected into the health system in Colombia.
In 10 years of regulatory developments, this is the first time that industry actors have experienced a norm that tends towards regression and restriction and not growth with regulation. Finally, we find, with surprise, the specific similarity in various wordings of this norm with the Spanish Royal Decree 958-2020, a norm that, by the way, is currently being sued in the Spanish courts.
Taking advantage of the regulatory suspense that this Advertising Resolution has, we expect a review by the regulatory entity and that it submit the regulatory content to a new agreement with the industry that projects positive results for everyone.
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Juan Camilo Carrasco, is a partner at Asensi Abogados and expert in gaming regulation and legal issues for the industry,
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