The Santiago Court of Appeals confirmed the fine of 20 UTM against the television operating company.
Chile.- The Santiago Court of Appeals confirmed the resolution that imposed a fine of 20 UTM on the television operating company Entel Telefonía Local, for displaying advertising spots promoting online betting services during child protection hours for minors under 18 years of age.
The fine originated from the broadcast of advertising spots for betting platforms on the TNT Sports channel on September 3, 2023, between 13:21 and 13:32 hours, during child protection hours, which are reserved for content suitable for minors.
In a unanimous decision by the Second Chamber of the appellate court –comprised of Justices Mireya López, María Paula Merino, and lawyer Rodrigo Asenjo– no violation or breach of due process was found in the sanction applied to the operator by the National Television Council and the subsidiary request to reduce the amount of the fine was dismissed.
“It is an undisputed fact that on September 3, 2023, between 13:21:03 and 13:32:46 hours, Entel broadcast through the ‘TNT SPORTS’ signal, various advertising spots for digital casino and gambling platforms, promoting the practice of online betting, during child protection hours,” states the ruling.
The resolution adds: “The allegations of the appellant, in summary, correspond to: Violation of the basic rules of due process: inability to present evidence; it is TNT Sports (and not Entel) who unilaterally sets the programming of audiovisual content; Entel's size within the pay television industry does not grant it negotiating power to modify the terms of the contracts it signs; that it has acted diligently to comply with current regulations; and, that administrative responsibility is personal: The administrative sanction can only be imposed on the person who committed the infringing conduct”.
“Regarding the impossibility of presenting evidence and how this affected due process, it should be noted, firstly, that the regulations governing television service are designed to ensure its proper functioning –regulating child protection hours and the classification of the material to be shown, such that, having charged Entel with broadcasting through the ‘TNT SPORTS’ signal, various advertising spots for digital gambling platforms, promoting the practice of online betting, during protected hours, the evidence that could be presented should have aimed to refute any of the factual components of this charge, however, such fact was not denied and therefore it was unnecessary to open a probative term,” it adds.
Entel argued that it had no control over the content broadcast by TNT Sports, as the programming of the signal is unilaterally decided by the channel provider. The company maintained that it could not present evidence to refute the facts and that the size of its operation in the paid television industry (with a 4.6 percent share) does not grant it power to negotiate or modify contracts. Entel also argued that it acted diligently by offering parental control tools to its users, which would allow parents to control what their children watch. However, the Court of Appeals considered that this does not exempt the company from its responsibility.
“Moreover, regarding whether it should have been allowed to prove whether Entel could have controlled or altered the signal and, the technical and contractual impossibilities to modify the contents previously sent by the programmers via satellite, it should be considered that no violation as claimed by the appellant is observed, since even if the assertion that it cannot control or alter the signal were true, this could never enable it to violate the sector's legislation, and therefore it does not have the standing to justify a violation of the legal system,” says the ruling.
See also: Chile: the Supreme Court orders that Internet providers block sites of illegal betting houses and casinos
Furthermore, the ruling notes: “That, the allegation referred to the infraction imputed to the appellant would not be applicable to it, since the audiovisual content transmitted is the exclusive responsibility of the programmers of each of the signals, so it does not hold the quality of a concessionaire but that of a permit holder of television services, will also be dismissed, being sufficient for this purpose the provision in the second paragraph of Article 13 of Law No. 18.838 which states: ‘The concessionaires of free-to-air television broadcasting services and permit holders of limited television services shall be exclusively and directly responsible for any and all programs, national or foreign, that they broadcast, even if they involve transmissions or retransmissions via satellite.’ This article also supports Entel, insofar as it claims that the administrative sanction can only be imposed on the person who committed the infringing conduct, as the norm expressly states”.
For the appellate court: “Consequently, the law expressly makes the permit holders directly responsible for the content of the program they transmit or retransmit, so their actions must comply with the legal and regulatory norms that regulate the content that is broadcast and its protection schedule, in order to adjust their conduct to what the law mandates in terms of complying with the proper functioning of the television service they provide”.
