OVG: collateral clause on advertising in the GlüStV is lawful

A judgement given by the Oberverwaltungsgericht Saxony-Anhalt states that the collateral clause about advertisements which is incorporated in the State Gambling Act is lawful. In a preliminary redress mechanism, the court had confirmed the Gambling Authority’s perspective. We are talking here about the ban on affiliate marketing when linked with legal and illegal games of chance offers. What is the impact of the OVG judgement?

In the past months we have often reported about court decisions which involved the GGL. GGL is short for Gemeinsame Glücksspielbehörde der Länder, and it is the national gambling regulating body in Germany. At the end of April we had reported in an article, that a TV station had to remove illegal games of chance from its internet pages. A few days ago, the Oberverwaltungsgericht Sachsen-Anhalt (OVG) has now issued a court decision in a preliminary redress mechanism in accordance with the nationwide responsible gambling authority.

Decision: collateral clause on advertising is lawful

The court in Saxony Anhalt has decided that affiliates which provide internet site links to illegal gambling offers, are thus advertising illegal gambling. This is also applicable if the affiliate also advertises for legal online casinos or advertises mainly legal online casinos with GGL licence. In accordance with § 284 Paragraph 4 this constitutes a criminal offence which is “punishable with up to a year in prison or a fine”.

Accordingly, an affiliate which also advertises illegal online casinos besides online casinos which hold a German licence, is also liable to criminal proceedings. According to the judges such a procedure is not compatible with the aims of the State Gambling Act. The players should in no way get the impression that illegal gambling is on a par with legal gambling.

What is interesting in the OVG judgement however is the fact that the gambling providers themselves must ensure that their affiliates are marketing on their platform only games of chance which are legal. If an affiliate does not implement this, the providers are requested to end the cooperation with them.

The collateral clause on advertising is legally established in the licence to organise virtual slot games. The Gambling Authority had previously appealed the decision of the Administrative Court Halle and now the OVG has decided on the case within a preliminary redress mechanism. Last February we had reported about another OVG court decision from the Rhineland Palatinate, in which the court had determined that web blocking is lawful in Germany.

GGL: first fines issued for infringement of advertising regulations

It was recently announced that the GGL, has already issued the first fines for infringements of the collateral clause of gambling advertisements. A five digit figure notification of administrative offence was issued to a provider of games of chance who after acquiring the GGL licence kept on working with affiliates who advertise illegal online casinos.

Besides this, the court in Saxony Anhalt has confirmed that advertisements for freely offered online casino games and virtual slot games are banned. The OVG has also determined that the bonus offers of the circle of beneficiaries, the reason for the campaign, as well as its duration must be clearly stated. The OVG decision cannot be contested.

Conclusion

The OVG Saxony Anhalt has decided that the collateral clause on advertising as stipulated in the GlüStV is lawful. The court has thus specifically stated that the gambling providers are obliged to ensure that its affiliates market only legal gambling services. Those affiliates who market illegal online casinos are liable to criminal prosecution.

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