On 6 April, 2023, the Government of India introduced new amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter referred to as “Rules, 2021”) in the form of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2023 (hereinafter referred to as the “Rules, 2023”) for apparently regulating a more open, safe, trusted and accountable Internet.
We had previously discussed the draft amendments concerning the Information Technology (Intermediary & Digital Media Ethics Code) Rules, 2021 as well as the amendment to the Allocation of Business Rules by the Central Government to bring online gaming within the ambit of the Information Technology (IT) laws and also to regulate ‘fake news’, vide our Blog on this link.
KEY HIGHLIGHTS
The said amendments under Rules, 2023 can be summarised into the following key points:
- Defining terms like ‘online game’, ‘online gaming intermediary’, ‘online gaming self-regulatory body’ and ‘online real money game’, which are, till date, not defined under any Central Statute or Rules. An online game has been defined as any game that requires a user to make a deposit with an expectation of winning a prize which can either be in cash or kind. In other words, any game that involves ‘real money’ is covered under this definition.
- Registration of an online gaming intermediary (an intermediary offering one or more online games on the Internet) with a self-regulatory body which in turn will be registered with the Ministry of Electronics and Information Technology
- Rule 4-A for ‘Verification of online real money game’ which stipulates that the Ministry may designate as many online gaming self-regulatory bodies as it may consider necessary for the purposes of verifying an online real money game and further lays down exhaustive criteria on who can apply as an online gaming self-regulatory body. The provision further provides the role and authority of such self-regulatory bodies which can be summed as follows:
- To inquire and satisfy itself that the online game does not involve betting/gambling on any outcome; and
- To ensure that the online game complies with the rules/requirements under the law, including measures to safeguard through parental controls, etc.
- To publish on its website/mobile based application, the framework for redressal of grievances and the contact details of the Grievance Officer.
- Rule 3(1)(b)(v) provides for “Fact Check Unit” to be set up by MeiTY to ascertain “fake or false or misleading” information or content posted on the Internet. Any violation in this regard could also lead to an Intermediary losing its Safe Harbour Protection under the Information Technology Act, 2000.
- In addition to the responsibilities already specified under Rule 3 of the Rules 2021, the Rules, 2023 fix more responsibilities on online gaming intermediaries such as if the online game that can cause harm to the user, then it is the duty of the intermediaries and grievance redressal mechanism to inform the user of its computer resource not to host/ display/ upload/ modify/ publish/ transmit/ store/ update/ share any information of that harmful online game.
- Rule 4-C, as per which, the Central Government, in the interest of the sovereignty and integrity of India or security of the State, can direct the intermediary to make necessary alterations.
LACK OF CLARITY:
As highlighted in our previous post, the said Amendments still lack clarity on the following:
- Criteria of determining what is a game of skill and what is a game of chance, which distinction is deemed imperative in most legislations surrounding gaming to differentiate the same from betting / gambling.
- Basis on which the SROs will decide the legitimacy of an online game involving money as besides game of skill and game of chance differentiation, consideration must also be given to ethics, children’s safety and societal harms.
- Misuse of the Fact Check Unit to identify ‘fake content’ and adverse implications on “freedom to speech and expression”.
Further, the said amendments are centred around laying down duties for stakeholders in the online gaming space, rather than overseeing the monetisation of online gaming. These guidelines do not address the ‘play for rewards’ model or touch on different means of revenue generation by the gaming intermediaries such as the advertisement model which shields consumers from parting with their money. The Rules, 2023 also do not address revenue sharing between different types of intermediaries such as gaming intermediary and social media intermediary.
Further, as discussed in our previous Blog that the subject of ‘online gaming’ itself is not covered under the IT Act, 2000 per se, since gaming is not a central legislative subject but a State specific subject. The amendments fail to address this overlap between the several State legislations already enacted for dealing with online gaming and the instant Rules, 2021 without even amending the parent statute, that is, the Information Technology Act, 2000 to bring online gaming as such within the ambit of IT Laws.
CHALLENGE ALREADY:
A major concern with most organisations and individuals operating and advocating for free flow of information and content on the Internet has been regarding the unfettered power and authority granted to unnamed “Fact Check Unit” under the garb of identifying fake content or information on the Internet, vide Rule 3 (1)(b)(v), as amended.
Stand-up Comedian Kunal Kamra with the support of The Internet Freedom Foundation (IFF), an Indian non-profit organisation focused on research and policy, has filed a writ petition before the High Court of Bombay challenging the said amendment, citing the same to be “manifestly arbitrary”. The Centre has been directed to file its reply with supporting reasons for the said amendments.
