Association of Prosecutors releases statement against legalization of Tele-Lottery.
TECHNICAL NOTE
REF. Bill No. 5.367/2005
Author: Congressman Celso Russomano
Rapporteur: Deputy Luiza Erundina
Bill No. 5.367 of 2005, authored by Representative Celso Russomano, aims to establish requirements and conditions for holding contests or promotions with a social purpose conducted through any means of communication. The Second Substitute Bill presented by Federal Representative Luíza Erundina before the Committee on Science and Technology, Communication and Informatics establishes conditions and requirements for holding "participatory events through telecommunications services".
According to the ANPR – National Association of Federal Prosecutors – this is, in fact, a way of resurrecting yet another value-added service through the telecommunications system (telephone lottery modality), with a wide range of harmful effects on consumer rights and society in general. The Bill and its Substitute institutionalize the sale of bets, with payment collected through telephone bills, ensuring free economic exploitation of a form of gambling.
The expression "participatory events through telecommunications services," as provided for in Article 1 of the Substitute Bill, conceals gambling activities, which are considered a criminal offense under our legislation.
The operation of lotteries in Brazil exists as an exceptional derogation from criminal law, constituting, moreover, an exclusive public service of the Union, not subject to concession and only permitted under the terms of Decree-Law No. 204 of 1967. (Article 1. The operation of lotteries, as an exceptional derogation from the norms of Criminal Law, constitutes an exclusive public service of the Union not subject to concession and will only be permitted under the terms of this Decree-Law). This is a Union monopoly, referring to an activity legally considered a public service and whose income must have a strict social purpose (Decree-Law No. 204/67, Article 1, sole paragraph: “The net income obtained from the operation of the lottery service shall be mandatorily destined to applications of a social nature and medical assistance, undertakings of public interest”). Therefore, the authorization and regulation of lottery activities or other raffles of any nature can only be done by the Union, since it is a regulation of an activity that affects criminal law.
The legal treatment given to the subject in itself already indicates that the operation of gambling in Brazil is an absolutely exceptional measure, in view of the notorious social and moral harm already experienced in countries where gambling is open to private initiative.
In Brazil today, it has still been possible to prevent the spread of gambling, despite the undeniable pressure from globalized sectors linked to this area. The Bill and its Substitute, going against the general principles of our legislation, end up introducing gambling into homes and workplaces, making it accessible simply by using a telephone line.
Furthermore, the possibility of financial harm to telephone line owners is increased due to their use by third parties, including children.
It is important to note that the Federal Public Prosecutor's Office has expressed particular concern about situations related to the improper use of value-added services, as clearly illustrated by public civil actions filed throughout the country, as well as the Conduct Adjustment Agreement signed between the Federal Public Prosecutor's Office (PR/SP), ANATEL, and TELESP.
It should also be noted, as it is relevant, that the Substitute Bill, in a vain attempt to mitigate the harmful effects of this proposal, provides for the possibility of partial or total blocking of this "value-added service," without, however, guaranteeing that this blocking will be free of charge. In practice, this means the real possibility that telephone service providers will still charge the user an extra fee corresponding to the blocking of a "service" that they do not wish to use. The potential damage to consumer rights is serious from all angles.
That's not all, however. In addition to the aspects mentioned above, the proposal in question is entirely deserving of rejection, since:
01. It grants the private sector the right to operate gambling, ensuring that businesses in this sector receive a significant share of the revenue (86,5%) and reserving the small remaining portion for the National Penitentiary Fund and the Fund for the Defense of Diffuse and Collective Interests;
02. It transforms what is currently the exception into the general rule, thus paving the way for the definitive legalization of gambling in Brazil and transferring the management of these practices to the private sector;
03. It transforms gambling into a lucrative business, breaking the fundamental rule that the primary objective of operating a lottery and consortium system is to channel resources towards social programs;
04. It provides an opportunity to conceal, through economic structures that will support "illegal gambling," numerous illicit activities (such as smuggling and drug trafficking), ensuring the laundering of assets and money derived from these activities;
05. distorts the nature and purpose of the value-added services created by Law 9.472/97 (art. 61) – which are to add to a telecommunications service that supports it and with which it is not confused new utilities related to the access, storage, presentation, movement or retrieval of information – transforming them into vehicles for the exploitation of gambling;
06. In practice, its target audience is the universe of children and adolescents who, due to their natural immaturity, will participate in televised lotteries without the knowledge of their parents or guardians, which will imply economic losses for the latter and regrettable manipulation by the former;
07. It leaves the prize amount open-ended, decoupling it from the gross revenue of each "participatory event," thus allowing for an immeasurable profit margin for those exploiting "gambling games."
In light of these aspects, the ANPR – National Association of Federal Prosecutors – opposes Bill No. 5.367/2005 and its substitutes, requesting that Your Excellency not approve it in the Committee on Science and Technology, Communication and Informatics.
ANPR – National Association of Federal Prosecutors
