Restrictions on advertising, including the advertising of gambling
Principle of equality
Weighing up interests
Rights with regard to the audio-visual media and other means of mass communication
RULING Nº 633/06
21 of November of 2006
The Portuguese Constitution may not define the concept of advertising, but it does not leave the subject entirely up to the law. From the outset, it bans all forms of concealed, indirect or misleading advertising. In examining any restrictions on advertising, it must be borne in mind that advertising is a complex subject where several fundamental rights protected by the Constitution converge.
In order to consider whether the legislation relating to advertising complies with the Constitution, one has to consider how this relates to freedom of expression and information, freedom of the press and the media, freedom of culture, freedom to choose one's profession, and the right to property and individual freedom in general. In the case in point, constitutional rights in favour of gambling which could be breached by legal restrictions on advertising must be balanced against the constitutional rights or values the law is trying to protect by imposing the restrictions.
The advertising of gambling is not directly prohibited by the Constitution. The general rules and regulations applicable to advertising are a matter for the ordinary law. As far as gambling is concerned, the solution adopted at the discretion of the Parliament was a general ban on advertising.
The Provedor de Justiça (the Ombudsman) applied for the law exempting betting on horse racing from the ban on advertising to be declared unconstitutional, with general binding force. He argued that the Advertising Code places restrictions on advertising, including the advertising of gambling, apart from "games promoted by the Santa Casa da Misericórdia de Lisboa", which is a centre serving social needs, this being an exception the impugned law extends to betting on horse races. As a result, two different sets of rules govern the advertising of gambling; the general, restrictive rule and a subsequent special rule applying to betting on horse racing.
According to the Court, the reasoning behind the general ban on advertising which promotes gambling is that authorities do not wish gambling to be encouraged because of its consequences, but would not go as far as to ban it outright, unless reasons of public interest happen to change the balance of values. In the case of gambling on horse racing, however, it was considered that advertising was a means of encouraging it and, in so doing, of achieving the aims of horse racing. This would include the advantages inherent in horse racing - such as encouraging horse breeding and riding sports. There are economic benefits too, jobs are created, tourists are attracted to the area and exports are increased. These should be considered as the effects, albeit indirect, of betting on horse racing.
In short, the Court did not consider the differentiation to be fundamentally unreasonable or arbitrary, and therefore it did not breach the principle of equality. Accordingly, any comparative axiological evaluation of the interests at issue and of those which would justify the application of the same rules to advertising in favour of the games of chance promoted by the Santa Casa da Misericórdia de Lisboa is pointless. The Court accordingly decided not to declare the law in question unconstitutional.