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Belgium: Promotional games and contests – look before you leap!

With the Saint Nicolas (“Sinterklaas”, a typical Belgian and Dutch feast), Christmas and New Year period coming up, many companies intend to organize promotional games and contests which allow participants to win prizes, free products, etc. when participating. This is done both via classical media (radio, television and magazines) and online via their websites or social media web pages. Under Belgian law, the organization of such games and contests, if not properly organized, may be subject to criminal sanctions.

In particular, a company should ensure that the games and contests it organizes as promotional campaigns, do not fall under the regulated notions of “lottery” and “game of chance”, the organization of which is principally prohibited under Belgian law.

Lotteries. Under Belgian law, lotteries are defined as “transactions offered to the public intended to provide winnings by means of fortune“. Key elements are therefore that (i) a “public” offering exists (this requirement is interpreted very broadly by Belgian case law; any offer via internet/classical media will be considered to be public); (ii) there is a possibility to obtain “winnings (which will often be the case in a promotional game/contest); and (iii) the winner is determined “exclusively by fortune (i.e. the participants to the lottery cannot influence the outcome of the lottery by means of their intellectual or physical efforts; e.g. a random prize draw or a draw by the “innocent hand”; etc.).

The organization of such offerings is in principle illegal under Belgian law (some exceptions exist but are difficult to comply with in practice), regardless of whether a stake is required from the participant (i.e. a “free” lottery is also a prohibited lottery). The offering of a “lottery” is criminally sanctioned with fines which, for legal persons, may amount to 36.000 EUR.

Games of chance. Further, Belgian law generally prohibits the organization of and participation in “games of chance” which requires (i) a game (hence involving the intellectual or physical effort of the participant); (ii) a stake (i.e. the economic value paid by the participant as the specific counterpart to be allowed to participate in the game, so that e.g. mere internet connection costs are not considered a stake; “free” games of chance are therefore not considered games of chance); (iii) generating profit or loss (either by winning or losing the stake); (iv) involvement of chance, however limited it may be (hence, a purely skill based game/contest will not fall under this definition).

The organization of games of chance is principally prohibited under Belgian law, and subject to a strict licensing mechanism. The unlawful organization of such games may be sanctioned with fines up to 600.000 EUR.

Alternatives. The question thus arises which games or contests a company can validly offer to the public as a promotional campaign. Key is to organize a game or contest that does not fall under the definition of a “lottery” or a “game of chance”. One example is to organize a free contest which involves both some skill and some fortune (e.g. a contest where participants need to answer a sufficiently difficult question and where the winner is selected randomly out of the group of participants who answered the question correctly). Another example is to organize a purely skill-based contest (e.g. requiring participants to invent a new slogan or create a new logo and where the winner is chosen by an expert jury).

Should you have any further questions regarding to the above, please contact Patrick Van Eecke (Patrick.vaneecke@dlapiper.com) or Antoon Dierick (Antoon.dierick@dlapiper.com).