As we have very well perceived, currently, we do not have casinos or private 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 entity authorized to operate this type of activity in Brazil.
However, the advent of the internet has brought about a "borderless" world, allowing companies to operate virtually in Brazil. In this way, online betting games, whether sports betting or casino games, have started to exist in Brazil.
Currently, we are experiencing a phenomenon of the publicization of gambling in Brazil, also known as online casinos, with the most popular one at the moment being the “jogo do tigrinho” (Fortune Tiger).
At this point, advertising has emerged targeting these new niches, with a special focus on digital influencers.
The objective with influencers is a partnership where they are commonly offered a significant amount (which can reach millions) and a commission for each follower, in exchange for promoting the product.
However, this advertising and merchandising of online gambling has raised concerns about the legal implications and risks for consumers.
Marketing professionals involved in advertising commonly seek digital influencers for such promotion, clearly because of their large number of followers.
However, this practice raises a number of legal and regulatory issues, especially regarding the civil and criminal liability of the influencers and the companies involved.
The lack of specific regulation for online gambling advertising in Brazil makes it difficult to monitor 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 advertising online gambling is governed by the Consumer Protection 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 mislead their followers.
It's important to remember that these games are called games of chance because the odds of winning are remote compared to the odds of losing.
The Civil Code, on the other hand, provides for liability for damages caused to third parties, which can be applied if online gambling advertising by influencers causes harm to consumers, such as the development of gambling-related problems or indebtedness.
In other words, these are complementary laws that can be applied whether the relationship is purely consumer-based or not.
In the criminal realm, influencers can be held liable for offenses such as the misdemeanor of gambling exploitation (Article 50 of the Misdemeanor Law) or money laundering if their participation and intent to promote illegal activities are proven.
Marketing companies and professionals
Regarding companies and marketing professionals, it is understood that they follow a similar path to digital influencers.
In the civil sphere, both companies and professionals are subject to the same CDC and Civil Code rules, being liable for misleading or abusive advertising and for damages caused to consumers.
In the criminal sphere, the same principles that apply to influencers also apply to them.
Possible changes with the approval of proposed bills
As everything is a matter of perspective, currently, there are bills pending in the Federal Senate that could affect civil and criminal liability in online gambling advertising, notably: Bills No. 186/2014, Bills No. 595/2015, and PLS No. 2234/2022.
These bills aim to regulate gambling in Brazil, including online games (casinos, bingo, jogo do bicho, and sports betting).
The bills provide for the exploitation of gambling throughout the national territory, proposing the revocation of decrees that prohibit the practice and exploitation of these games. The project also defines the permitted modalities and proposes the creation of the National Gambling Council (Conja) to regulate and oversee gambling activities. Additionally, it establishes requirements for the granting of licenses and allocates part of the revenue to finance social security and sports entities.
Including the introduction of specific tax regulations for this new type of activity
If approved, this bill may establish specific rules for gambling advertising, defining the limits and responsibilities of those involved, who will have to follow a standardized disclosure pattern.
This could include the requirement to include warnings about the risks associated with gambling, as well as restrictions on the target audience of the advertising.
Additionally, it proposes environmental protection and the promotion of ecotourism in Conservation Units through shared management with hotel-casinos authorized to exploit betting games. The project allows the shared management of conservation units that allow public visitation by legal entities interested in operating betting games in hotel-casinos, prohibiting the installation of these establishments near conservation units classified as Ecological Stations and Biological Reserves.
The authorization process for operating betting games through hotel-casinos 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 could make influencers even more accountable for the advertising they do, possibly including stricter penalties for misleading or abusive advertising, as well as increased oversight by the relevant authorities.
But as mentioned, these are all positions, and just as there is popular support for the permissions, there is also opposition.
There is a single bill that aims to prohibit the dissemination, promotion, or endorsement of betting companies, casinos in general, gambling, or any related activities by digital influencers and artists. The bill establishes responsibilities, penalties, and awareness measures about the risks and negative impacts associated with these activities.
The project's conception recognizes the rapid growth of social networks and the influence exerted by digital influencers and artists on their followers, especially younger ones, requiring adequate regulation. However, currently, it is less likely to be approved.
How is this tug of war currently?
Currently, the Chamber has already approved bills for the regulation of gambling, with the Senate now responsible for analysis and forwarding for presidential sanction or veto. At present, there is a greater likelihood of the legalization of gambling in Brazil, with its regulations, than its prohibition.
Analyzing the data presented in the Chamber and Senate on popular support or opposition to the projects, it appears that the population seems more favorable to the legalization of gambling.
Nelson Alexander Schepis Montini
Lawyer and specialist in digital law
