The responsibility of digital influencers in the advertising of gambling

According to an article written by Dr. Nelson Alexander Schepis Montini, published in Propmark, a digital magazine specialized in advertising and marketing, Dr. Nelson Montini addresses the topic.

The article can be accessed at https://propmark.com.br/opiniao/a-responsabilidade-de-influenciadores-digitais-na-publicidade-de-jogos-de-azar/

As we have already noticed, currently, we do not have private casinos or betting houses in Brazil. We only have the Lottery, which is nothing more than a game of chance where the State is the collector and the only one authorized to operate this type of activity in Brazil.

However, the advent of the internet has brought a "borderless" world, allowing companies to operate virtually in Brazil. In this way, online gambling and betting, whether sports or casino, began to exist in Brazil.

Currently, we are experiencing a phenomenon in Brazil of the publicizing of games of chance, also known as online casinos, with the most popular at the moment being the "tiger game".

At this point, advertising aimed at these new niches began to exist, with special emphasis on digital influencers.

The objective with influencers is a partnership, where a significant amount (which can reach millions) and a commission for each follower is commonly offered for the influencer to promote the product.

However, this advertising and merchandising of online gambling have raised concerns about the legal implications and risks for consumers.

Marketing professionals involved, aiming at advertising, commonly seek digital influencers for such dissemination, clearly due to the number of followers.

However, this practice raises a series of legal and regulatory issues, especially with regard to the civil and criminal liability of influencers and the companies involved.

The lack of specific regulations for the advertising of online gambling in Brazil makes it difficult to inspect and control these activities, exposing consumers to risks such as gambling addiction, indebtedness, and exposure to inappropriate content, especially in the case of minors.

Current civil and criminal liability

Currently, we can say that the civil liability of digital influencers in the advertising of online gambling is governed by the Consumer Defense Code (CDC) and the Civil Code.

According to the CDC, influencers can be held liable for misleading or abusive advertising if they omit relevant information about the risks associated with gambling or induce their followers to make mistakes.

It is worth remembering that games of chance have this name because the chance of winning is remote compared to the chance of losing.

The Civil Code, on the other hand, provides for liability for damages caused to third parties, which can be applied if the advertising of online gambling carried out by influencers causes harm to consumers, such as the development of problems related to pathological gambling or indebtedness.

In other words, they are complementary laws that can be applied whether the relationship is purely one of consumption or not.

In the criminal sphere, influencers can be held liable for crimes such as the criminal misdemeanor of exploiting games of chance (art. 50 of the Law of Criminal Misdemeanors) or the crime of money laundering, if the participation and intention of the influencer to promote illegal activities are proven.

Marketing companies and professionals

Now, regarding companies and marketing professionals, we understand that they follow a similar approach to that of digital influencers.

In the civil sphere, both companies and professionals are subject to the same rules of the CDC and the Civil Code, being liable for misleading or abusive advertising and for damages caused to consumers.

In the criminal sphere, the same idea applies to influencers.

Possible Changes with the Approval of Bills

As everything is a matter of perspective, currently, there are bills pending in the Federal Senate that may affect civil and criminal liability in the advertising of online gambling, where we highlight: PLS No. 186/2014, PLS No. 595/2015, PLS No. 2234/2022.

These projects aim to regulate gambling in Brazil, including online games (casinos, bingo, animal game, and sports betting).

The projects provide for the exploitation of games of chance throughout the national territory, proposing the repeal of the Decree-Laws that prohibit the practice and exploitation of these games. The project also defines the permitted modalities and provides for the creation of the National Council of Games of Chance (CONJA) to regulate and supervise the exploitation of games. In addition, it establishes requirements for the granting of licenses and allocates part of the revenue to finance social security and sports entities.

There would even be a specific tax regulation for this new type of activity.

If approved, this bill may establish specific rules for the advertising of games of chance, defining the limits and responsibilities of those involved, where they must follow a standard of disclosure.

This may include the obligation to include warnings about the risks associated with gambling, as well as restrictions on the target audience of advertising.

It also proposes environmental protection and the promotion of ecotourism in Conservation Units through shared management with casino hotels authorized to operate betting games. The project allows the shared management of conservation units that allow public visitation by legal entities interested in operating betting games in casino hotels, prohibiting the installation of these establishments in the vicinity of conservation units in the categories of Ecological Station and Biological Reserve. The process of authorization for the operation of betting games through a casino hotel would be preceded by a public call or announcement and a public selection process, with an authorization period of 20 years, renewable for an equal period, and requirements for the execution of the Environmental Recovery and Preservation Plan of the conservation unit, among other conditions.

If approved, this bill may make influencers even more responsible for the advertising they carry out, which may include more severe sanctions for misleading or abusive advertising, as well as greater oversight by the competent authorities.

But as mentioned, everything is a matter of position, just as we have popular support for permissions, we have the opposite.

There is only one bill that aims to prohibit the dissemination, promotion, or endorsement of betting companies, casinos in general, games of chance, or any activities related to betting, by digital influencers and artists. The project establishes responsibilities, penalties, and awareness measures about the risks and negative impacts associated with these activities.

The idealization of the project recognizes the rapid growth of social networks and the influence exerted by digital influencers and artists on their followers, especially the younger ones, requiring adequate regulation. However, it is currently a losing vote and less likely to be approved.

What is the current state of this tug-of-war?

Currently, the Chamber has already approved bills for the regularization of gambling, and it is now up to the Senate to analyze and forward them for presidential sanction or veto. We currently have a higher probability of having the opening of gambling in Brazil, with its regulations, than its denial.

Analyzing the data presented in the Chamber and Senate, regarding popular support or not for the projects, it seems that the population is more positive about the legalization of gambling.