The Federative Republic of Brazil seems to be getting closer and closer to seeing the general ban on gambling coming to an end, now that the draft decree that will regulate Law 13.756 of 12 December 2018 is available for public consultation.
Any gambling on Brazilian territory has been banned since 1946. Transatlantic with onboard casinos can only operate it when entering international waters, but today, with online gambling legal in many jurisdictions, a considerable number of Brazilians end up gambling on a daily basis, not to mention the illegal gambling that is well known to be a reality in Brazil.
For those who have daily contact with jurisdictions such as Portugal and the Macao Special Administrative Region of the People's Republic of China (hereinafter, Macao), where gambling is legally permitted and regulated in various ways, it is interesting to have the opportunity to see a regulation from scratch emerge, like a blank canvas, in a jurisdiction of a matrix and language like ours, but with very different social realities.
The text of the proposed decree under discussion focuses mainly on stipulating the destination of the collected amounts, on the provision of the operating authorization regime of the gaming operators and on the responsible gaming.
Taking into account the advertising aspect in Macau, gambling cannot be publicized as an essential target of the advertising message - perhaps because, in addition to the particular concern these days regarding Responsible Gambling by public entities in Macau, there is, in fact, no need to advertise gaming in Macau.
On the contrary, according to the decree, it will be possible to advertise the fixed-odd lottery betting mode, similar to the regime currently in force in Portugal, whose advertising is often aggressive.
Even so, the decree alludes to publicity based on the defense of responsible gambling, i.e publicity should be guided by social responsibility and the promotion of responsible gambling awareness and always accompanied by warning clauses. In Portugal, the main concern is the protection of minors, as well as other vulnerable and at-risk groups and, on the other hand, the non-association of gambling with borrowing activities (changes introduced in 2015, the previous regime was similar to currently in force in Macao).
Regarding to the prevention of money laundering and terrorist financing, we must not fail to mention that the requirement for operators to adopt and implement a preventive policy (not expecting anything else), however, there seems to be a certain conflict between the control of gambling and the corresponding policy that prevents the relationship between betting and illegal activities and what the international community understands as an efficient protection of personal data. Because, in accordance with articles 33 et seq. of the decree, practically all information about the persons involved in the activities concerned, not just the clientele, must be collected, processed and stored by the operators.
It should also be noted that Article 52 of the decree states that “In order to safeguard the public interest in the exploitation of fixed-odd betting lottery, the Ministry of Economy or its successor shall issue within the limits of its institutional powers, complementary rules with a view to complying with the provisions of this Decree”, that is, the decree that regulates the fixed odds betting related to real sporting events may still be developed by the referred entities, in order to deepen the matter now regulated.
Dealing daily with Macau – The “Las Vegas” of Asia - with a reality that revolves around gaming, thus demanding a great deal regarding the diplomas that regulate these activities, it is curious to follow what is happening in Brazil, where the first and essential steps are being taken on a path that seemed to have ended in 1946. We look forward to the results of the public consultation on this decree and with even more anxiety the decisive step for the Brazilian economy which will be the possible legalization gaming in casinos, which we will return to in an upcoming article.
Pedro Cortés & Madalena Perestrello
Authors:
Pedro Cortés
Lawyer in Macao since 2003, he is a partner at Rato, Ling, Lei and Cortés - Advogados (which has offices in the People's Republic of China, Macao and Portugal). Has experience in gambling, commercial, financial, capital markets and arbitration.
He is registered as a lawyer with the Macao Bar Association, Bar Association, Brazilian Bar Association (São Paulo), Guangdong Department of Justice (as a cross-border lawyer) and may also practice in Timor-Leste. He is a member of IAGA (International Association of Gaming Advisors), Hong Kong Institute of Directors, IBA (International Bar Association), CIArb (Chartered Institute of Arbitrators) and Hong Kong Institute of Directors.
He is a guest lecturer in the Chair of the Gaming Law of the Faculty of Law of Lisbon at the Catholic University of Portugal and has taught at the Master of Social Sciences - Global Economic Policy program at the Chinese University of Hong Kong. He contributes regularly to legal and non-legal publications and is a speaker at various conferences and seminars (especially in the gaming industry).
Madalena Perestrello
She is a Trainee Lawyer at Rato, Ling, Lei & Cortés - Advogados, since 2017, with special emphasis in the areas of Gaming, Commercial and Corporate Law, Civil and Administrative. She holds a law degree from the Faculty of Law of the University of Lisbon and a postgraduate degree in Corporate Finance from the Faculty of Law of the University of Lisbon.
