Almost all players are familiar with the situation: online casinos or digital sports betting providers based abroad also make their programmes available in Germany via international licences, and they are also heavily involved in advertising. This is a seemingly perpetual thorn in the side of the GGL in particular. However, the authority has now achieved a success, at least in terms of gambling advertising, which could point the way forward, but is difficult to transfer to the entire gambling landscape. Here is the full story and possible consequences.

The Joint Gambling Authority of the German federal states (GGL) has long been taking action against streamers who behave in a way that contravenes German gambling laws. Advertising is regularly a key issue in this context. Specific problems are also repeatedly highlighted in our reporting. For example, Ron Bielecki was fined 480,000 euros in 2023 for advertising unauthorised gambling, among other things. Streamers are also suspected of cheating their viewers by playing rounds of gambling, which may be linked to sponsorship deals that also utilise advertising strategies.

The fact is: advertising for games of chance that are not authorised in Germany is illegal - regardless of how it is packaged or embellished. Active internet users come across clever slot promotions almost every day, for example hidden in supposedly harmless Let's Play videos, social media posts with inconspicuous discount codes for casinos or streams that suggest lucrative winnings in this or that slot game. Such advertising measures often originate from abroad and are often deliberately intended to remain under the radar of the authorities in order to circumvent legal boundaries and unwittingly influence viewers.

In this context, however, a landmark judgement was handed down by the Higher Administrative Court (OVG) in Saxony-Anhalt in mid-July following an appeal against an injunction issued by a well-known streamer. The (GGL) therefore has the right to prohibit foreign streamers from advertising gambling that is illegal in Germany. This is likely to be a precedent-setting case, but it has a more limited scope than might initially be assumed. After all, not everyone who advertises illegal gambling is as "easy" to catch as streamers.

Injunction against German streamers abroad confirmed by the OVG Saxony-Anhalt

GGL published a press release in which it describes the case as follows: A "well-known" but unspecified streamer based abroad, who distributes his offers in German and in Germany, was ordered to cease and desist from advertising measures relating to online gambling that is unauthorised in Germany. According to the judgement, he is no longer permitted to carry out such promotions in Germany.

Specifically, the advertising was done "by taking part in virtual slot machine games, filming himself and publishing the recordings as a video or livestream". It was therefore not even relevant whether the streamer may have directly said that you should try out certain games and/or could make worthwhile profits. The mere "public" gaming was defined as advertising.

The streamer then initiated interim legal protection proceedings. He did not agree with the order to cease and desist. However, the OVG Saxony-Anhalt clearly confirmed the legality of the GGL's prohibition order.

Territoriality principle under international law decisive in the OVG's decision

In its decision against the streamer's objection, the court primarily referred to the so-called "principle of territoriality under international law". This principle states that a state has sovereignty and the right to legislate and exercise jurisdiction over all persons, objects and events within its own territory. This principle forms the basis for state sovereignty and territorial integrity by recognising that a state has complete and exclusive legal authority within its geographical borders.

In this case, the law applies as follows according to GGL: The streamer has created content in German that is designed for German-speaking countries. "Viewers who access the streaming content from Germany are therefore primarily addressed. According to the OVG Saxony-Anhalt, this has an advertising effect in Germany, which legitimises the use of German regulatory authority."

Furthermore, the OVG confirmed that "for reasons of effectiveness in averting danger", it was not an option for the GGL to take action against an entire streaming platform instead of obliging an individual streamer to cease and desist in order to exclude such offers for Germany. Ultimately, it was also recognised "that the ban on advertising unauthorised online gambling meets the requirements under European law for the justification of restrictions on fundamental freedoms by overriding reasons in the public interest".

GGL board member Ronald Benter commented in the press release:

"The decision has a signalling effect! In future, GGL will take even stronger action against streamers based abroad. This is particularly necessary for the protection of players and minors due to the special dangers inherent in streaming."

Conclusion

Despite the groundbreaking decision, which now (emphatically) authorises the GGL to also prohibit foreign streamers from advertising gambling that is illegal in Germany, the prosecution of such advertising measures remains a challenge. Most advertisers, especially test and review platforms, are difficult to identify as there is often no legal notice on the websites in question and advertisements are difficult to trace. In addition, those responsible rarely appear in person - in contrast to many streamers. The editorial offices of these online offerings also remain largely hidden.

Furthermore, the definition of advertising is not always clear. Although the OVG clarified in its ruling that even the mere public playing of a game can be classified as advertising, grey areas remain. Many subtle advertising measures defy clear categorisation and pose considerable problems for the supervisory authorities. In practice, it will therefore continue to be difficult to consistently enforce the direction set by the judgement and effectively punish all infringements.

Image source: https://pixabay.com/illustrations/illuminated-man-futuristic-6981373/

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