Lottery advertising with maximum prize (jackpot) may be inadmissible

In an appeal judgement pronounced on 6 May 2009, the Higher Regional Court of Koblenz (OLG Koblenz) prohibited Lotto Rheinland-Pfalz GmbH from advertising the gambling lottery "6 out of 49″ with a possible maximum prize ("jackpot") if this advertising is not combined with the information on the probability of winning and losing prescribed by the State Gambling Treaty.

A provider of gambling services with its registered office in the Netherlands demanded that Lotto Rheinland-Pfalz GmbH cease certain advertising measures before the Regional Court of Koblenz. The Regional Court of Koblenz granted the action with regard to three claims; in this respect, the Regional Court's judgement is final. With regard to two further applications, the Regional Court dismissed the action as unfounded.

The judgement of the Regional Court of Koblenz of 23 December 2008, file number: 4 HK.O 133/08, is published at www.justiz.rlp.de (>Justice).

The plaintiff appealed against the judgement of the Koblenz Regional Court insofar as her action was dismissed on two points. Her appeal was successful with one claim. Lotto Rheinland-Pfalz GmbH is now also prohibited from communicating the possible maximum prize on posters or billboards when advertising the 6 out of 49 lottery if this advertising is not accompanied by information about the probability of winning and losing.

As the 9th Civil Senate of the Higher Regional Court of Koblenz stated in the reasons for the judgement, the aforementioned advertising violates § 5 para. 1, § 6 of the State Treaty on Gambling in conjunction with No. 2 of the Guidelines for the Prevention and Combating of Gambling Addiction. These guidelines require that participants in games of chance be informed about the probability of winning and losing. According to the aforementioned regulations, the contested advertising with a maximum prize was already inadmissible due to the omission of the prescribed information. It was therefore not relevant to the question - answered in the affirmative by the Regional Court - whether the advertising of Lotto Rheinland-Pfalz GmbH with a "jackpot" in the chosen colour and graphic design was otherwise permissible.

The Koblenz Higher Regional Court dismissed the plaintiff's further appeal. The plaintiff had requested that Lotto Rheinland-Pfalz GmbH be prohibited from offering participation in lotteries in the immediate vicinity of the opportunity to purchase sweets. Like the Regional Court, the Senate is of the opinion that the simultaneous offer of sweets and the possibility to participate in lotteries in one and the same shop is generally permissible. Such an offer does not violate the objectives of the State Treaty on Games of Chance and in particular the objective of protecting minors. The mere coexistence of the offer of sweets and the possibility to participate in gambling did not constitute a direct invitation to children to participate in gambling or to entice adults to do so. Nor did the mere offering of everyday articles alongside the opportunity to participate in gambling trivialise the danger of addiction if, in accordance with the regulations, there were clear warnings about the danger of addiction.

There is no right of appeal against the judgement. The judgement is therefore final.

§ Section 5 and Section 6 of the State Treaty on Gambling in Germany (State Treaty on Gambling - GlüStV) read as follows:

§ 5 Advertising

(1) Advertising for public gambling shall be limited to information and education about the possibility of gambling in order to avoid a solicitation character while maintaining the objective of offering legal gambling opportunities.

...

§ 6 Social concept

The organisers and brokers of public games of chance are obliged to encourage players to gamble responsibly and to prevent the development of gambling addiction. For this purpose, they shall develop social concepts, train their staff and comply with the requirements of the Annex "Guidelines for the Prevention and Combating of Gambling Addiction". The social concepts shall describe the measures to be taken to prevent the socially harmful effects of gambling and how they are to be remedied.

No. 2 of the Guidelines on the Prevention and Combating of Gambling Addiction (annexed to the State Gambling Treaty) has the following content:

Information about maximum winnings must be combined with information about the probability of winning and losing.

 

Judgements:

Regional Court of Koblenz, judgement of 23 December 2008, file number: 4 HK.O 133/08

Koblenz Higher Regional Court, judgement of 6 May 2009, file number: 9 U 117/09

 

Source: Press release of the Higher Regional Court Koblenz

 

Goldberg Attorneys at Law

Attorney at Law Michael Ullrich, LL.M. (Information Law)

E-mail: info@goldberg.de

Seal