Yash Tiwari is a Student of RMLNLU, Lucknow
INTRODUCTION
In recent years, online gaming has been growing in popularity in India, where it has grown to be both a booming industry and a well-liked form of entertainment. The online gaming market is poised to expand in India as it continues to embrace digital transformation, offering a vibrant and dynamic platform for individuals to connect, compete, and find new vistas within the virtual world. Online gaming undoubtedly offers many benefits and enjoyable experiences, but it can also have some adverse effects, especially when used excessively or without moderation.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, were made public by the government on April 6, 2023, with the intention of safeguarding users from any potential harm from skill-based games and ensuring that these games adhere to Indian law. The purpose of amending the Information Technology Rules of 2021 is to introduce a framework for online gaming to control “the persistent and unwarranted impact that online gaming activities have on players, particularly children and other vulnerable groups in society”.
Although the intention is good, the purpose behind the introduction of these standards may be undermined by vague definitions of crucial terms like ‘user harm’. It would be interesting to see the checks that the OGI(s) would bring in to comply with these requirements, given the subjective definitions provided for these terms. The intent seems to have been to define ‘User Harm’ as wide as possible in order to safeguard users from any harm that might come their way while participating in online gaming.
GAMING REGULATIONS
The IT Rules now have a legislative definition of an “online gaming intermediary” as a result of the Amendment brought in April. An online gaming intermediary[1] has been defined thereunder as “an intermediary that ‘enables the users of its computer resource to access one or more online games”. Further, the term “online game”[2] has been expressly defined as “any game that is offered on the Internet and is accessible by a user through a computer resource or an intermediary”.
The rules mandated the creation of a self-help organisation called the Self-Regulating Body (SRB)[3], whose decision-making body will be made up of a diverse group of industry experts and public welfare stakeholders.
The online gaming intermediary and such online games should adhere to the Gaming Rules, any framework that the SRB may adopt, and its due diligence duties. Measures to prevent “User Harm,” protecting children, primarily through age-rating systems, safeguarding against addiction risks, financial loss, fraud, and issuing warning messages more frequently than is acceptable during a gaming session are all possible within such a framework.
The Advertisement-related obligations[4] require the intermediaries to restrict OGIs[e11] (Online Gaming Intermediaries) from offering online games that may cause user harm, may have a chilling effect and a better approach may be to require SRB verification for Online Real Money Games and have an “actual knowledge” standard[5] for all other online games in relation to user harm.[6]
Under the rules, the Central Government has the authority to declare OGIs that do not offer online real money games to be categorised as Real Money OGIs based on certain parameters, including public safety, national security, and an extremely broad concept of “harm”.[7]
However, the lack of precise definitions for terms like wagering, financial loss, user harm, etc., could result in disputes between the gaming businesses and the regulatory agencies. Some definitions have been left unclear and are up to the SROs[e12] (Self-Regulatory Organisations) to decide. The new rules formalise the previous proposal for self-regulation by registered organisations and thorough customer requirement knowledge but leave terms like harm and wagering up for interpretation. It would be interesting to see the checks that the OGI(s) would bring in to comply with these requirements, given the subjective definitions provided for these terms.
CONCEPT OF USER HARM
In the revised IT Rules, the phrases “harm” and “user harm” have been defined rather broadly to include any effect that is detrimental to users[8] and to include “self-harm and psychological harm”.[9]
The intent seems to have been to define these terms as broadly as possible in order to safeguard users—especially youngsters but also adults—from any harm that might come their way while participating in online gaming. Therefore, the Indian government has used its authority to the fullest extent feasible to limit and alleviate such harm (actual and potential) by ensuring that the industry stays controlled in all respects.
While drafting the latest Amendments, the Indian Government has kept the prevention of harm to users, including adults and children as a high priority. Not just online gaming intermediaries but all categories of intermediaries covered by the new IT Rules are now required to refrain from disseminating information about online games that could harm users. This goes beyond the already-existing restriction that no information be hosted that is “harmful” to children. The Indian Government is additionally required by the IT Rules to determine whether any other online games should be labelled as lawful ones in order to prevent user harm.
THE GREY AREA OF “HARM” AND REGULATORY DILEMMAS
The government is authorised to create regulations governing online games to prevent harm, and intermediaries must take reasonable steps to ensure that an online game that causes user harm is not published. SRBs are required to prescribe processes and standards to prevent harm.
Because of this, it’s critical to have a predictable and objective definition of harm. While it may be tempting to define it as it is now done, i.e., “as any effect which is detrimental,” doing so in a situation where there are unavoidably winners and losers is particularly troublesome.
“Harm” and “user harm” have a very broad spectrum of definitions. Different users/children may have diverse experiences with the gameplay or content of online games, and what may be harmful may vary amongst users/children. Without a clear, shared understanding of what might be harmful, compliance for OGIs may therefore be difficult. Additionally, this gives the government broad authority to use this clause. The lack of clarity could lead to government action based on arbitrary assessments of harm, leading to the possibility that otherwise benign games (like Candy Crush) would be subject to the Amendment’s compliance requirements.
The authority granted to MeitY, in this case, to bring even non-real money online games up to par with legal real money games under the IT Rules 2021 might be used to target games that the government deems dangerous or addictive. For instance, a bench in Tamil Nadu witnessed the negative psychological, physical, and emotional repercussions of children playing video games like “Subway Surfers” in late 2022.
The Madras High Court observed– “The children who are at the verge of schooling and college students, are almost become addicted to such online role-playing games like, Free Fire, Subway Surfers etc., and it has taken a heavy toll on their physical, emotional, psychological, social and academic life. By such addiction, the younger generation become a prey to ophthalmic issues, musculo skeletal issues, neck ailments, obesity, anxiety, and depression.”
If MeitY were to take a similar view, it could require such a game to adhere to SRB verification process under the IT Rules 2021, which includes such games adhering to the frameworks evolved by the SRB (e.g., on de-addiction).
CONCLUSION
By these Rules, the government aims to create a much more stable, consistent, and predictable framework for all those startups that are interested in the online gaming ecosystem. The protection of users has continued to be a top emphasis. Like in the case of Blue Whale game, where the government intervened and ordered the platform to stop offering it in India due to its detrimental and dangerous effects on users.
Although the objective is admirable, the purpose of introducing these rules may be compromised by ambiguity in the definition of key concepts such as user harm. The resulting uncertainty might create difficulty for the online gaming ecosystem and would bestow arbitrary and unrestrained power to the government and MeitY to regulate the control the gaming industry under the guise of a very nebulous notion of user harm.
For the purposes of the Gaming Rules, meaning of the word “harm” that is comparable to the one in the proposed data protection legislation[e13] [10] may have been added. Given that the Gaming Rules are fairly new and have only been in effect for a short time, there is no precedent for such provisions being invoked, thereby leading to a lack of clarity among gaming intermediaries regarding the threshold of harm that must be addressed in order to comply with the current requirements. Therefore, adding a new amendment to the Gaming Rules that clarifies and unambiguously defines the term “user harm” may be the best method to address the current issue.
[1] Rule 2 (qb) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
[2] Rule 2 (qa) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
[3] Rule 12 of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
[4] Rule 3(1) (b) (x) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
[5] Shreya Singhal vs Union of India AIR 2015 SC 1523
[6] Amendment to Rule 3(1) (b) (ii) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
[7] Rule 4C of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
[8] Rule 3(1)(b) Exp of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
[9] Rule 4A (8)(b) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
[10] Section 2(10) of the Draft Digital Data Protection Bill, 2022.
[e11]No earlier mention of the abbreviation used – creates confusion
[e12]Abbreviation not defined earlier
[e13]2022 Legislation has been cited – a newer legislation has come in place (2023)