[This post is authored by K.M. Thomas, a third-year student at NUALS, Kochi. It critically analyzes the new draft amendment to the IT Rules pertaining to online gaming]
Introduction
Playing games is an inherent part of human life and a prominent form of human interaction. From mancala (believed to be one of the oldest games) to modern games over the internet, there has been a dynamic shift in the way humans play games. However, with the passage of time, games became more complex and advanced, leading to several concerns.
In the current age of technology where the majority of games are played online, there is undoubtedly a potential risk pertaining to privacy infringement, data breaches, one-sided contracts, etc. Thus, there is a need for sufficient legislative or executive action to protect the interests of online game players from “potential harm”. The Union Ministry of Electronics and Information Technology released the draft amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“the Rules“), in order to safeguard the interests of online gamers. This article critically analyses the aforementioned draft amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021(“draft amendment“) to highlight the lacunae in the amendments.
Critical Analysis
(A) Scope of the term ‘online game’
The first concern is with respect to rule 2(qa) of the draft amendment, which defines what an “online game” is. On an analysis of the definition, it is quite clear that in order for a game to come under the ambit of an “online game,” the following conditions need to be satisfied: (a) the game should be offered over the internet and should be accessible via a computer resource, (b) there should be a deposit and, (c) the deposit should be made with the intent of earning winnings. Thus, strictly following the verbatim meaning of this rule would completely exclude free games, which form a major part of online games on the internet, thereby, not totally creating an Open, Safe & Trusted, and Accountable Internet in its entirety, as was initially envisioned by the government while notifying the amendments to the 2021 Rules in October 2022.
However, it is also pertinent to note that the definition of ‘online game’ as provided in section 2(qa) cannot be said to be a straight-jacket definition, and only games which are within the ambit of section 2(qa) would come under the purview of the draft amendment to the rules. This is because Rule 6A of the draft amendment provides the government the right to bring any game under the ambit of the rules even if the game can be accessed without any payment, provided such games cause addiction, harm to children, or if it is necessary to ensure national security, public order, or preserve foreign relations. It is also pertinent to note that these vague usages of terms coupled with a lack of necessary guidelines would enable the government to bring any game or any other service other than ones pertaining to games under the purview of the rules, thus leading to unnecessary government intervention and infringement of rights.
(B) Obligatory registration with Self -Regulatory Bodies
Another concern arises with respect to the insertion of rule 3(1)(ma) via the draft amendment. The new draft amendment does not particularly contain a provision that mentions mandatory registration of online games with self-regulatory bodies or that mandates online gaming intermediaries to become members of the self-regulatory bodies. However, Rule 3(1)(ma) of the draft amendment states that “the intermediary shall, before hosting or publishing or advertising an online game for a consideration, ascertain from the online gaming intermediary and verify from the concerned self-regulatory body, as referred to in rule 4B, whether such online game has been registered with such body, and shall display on its website, mobile based application or both, the fact of such registration.” This, in a way, makes it obligatory for online games to be registered with a self-regulatory body, thereby forcing online gaming intermediaries to become members of the self-regulating body.
Further, the so-called ‘verification’ from the concerned self-regulatory body might pose a threat to the intellectual property rights of the gaming intermediaries/companies, since these self-regulatory bodies might have access to the codes of the game and other intellectual property, without sufficient facilities to protect the the same from hackers and from other vicious elements over the internet. Considering the fact that source codes of several games have been hacked from several secure and sophisticated cyber environments, making the registration with self-regulatory bodies non-obligatory would add an additional risk of breach.
(C) Lack of necessary guidelines to determine the nature of the game and to prevent minors from entering into online contracts with the intermediary
Another issue pertaining to the draft amendment is that it does not authorize a body per se, and does not provide any straight-jacket rules or guidelines in order to determine whether the game in question is a game of chance or not, even though there has been several judgement priorly which lays down the conditions for the classification, having a single rule would eliminate the chance of overlapping and confusion and would bring in more uniformity; by relying on rule 3(1)(ma), it may be said that such a power is extended to the Self-regulating bodies. Giving the Self-regulatory bodies such power, may not achieve the purpose, since certain self-regulatory bodies might be financially motivated and might take an extensive view, thus declaring the majority of the games as games not based on chance.
Further another issue pertaining to the draft amendments is with respect to Rule 3(b)(ix), which provides that the intermediary should ensure that a child below the age of 18 years cannot enter into any online contracts pertaining to online games as mentioned in the draft amendment. The draft amendment however should have included specific guidelines that could be followed by the Intermediaries to ensure the same. It is quite pertinent that government provides regulations or guidelines in this regard since giving the Intermediaries the right to ensure the same would result in them not mandatorily enforcing the same as they are more focused on increasing the number of users and thus increasing their profits. Hence it is quite pertinent that adequate guidelines in this regard be issued.
Conclusion
The draft amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, are without a doubt a welcome move and have several promising amendments. However, there are still ambiguities and uncertainties pertaining to the draft amendment, it is quite pertinent that these issues are rectified and clarified before finalizing the proposed amendment, in order to ensure that the online gaming sector in India is adequately regulated and the interests of both the gamers and gaming intermediaries are protected.