On the second day of this new year, the Ministry of Information Technology (IT) proposed new amendments to the IT Rules, 2021, aimed at regulating online gaming under the IT Act, 2000.
But why was this done? To protect people from “potential harm”, the government said. But what is the meaning of “potential harm”? It can have endless meanings, from suicidal tendencies to bad cultural influences on children. The word “damage” is also used in the amended rules.
“In the absence of any publicly available discussion paper outlining the government’s intent, we are unsure how they will assess the ‘potential harm’ to users,” the Internet Freedom Foundation (IFF) said in its initial comments. It added, “We request the Ministry to publish a discussion/white paper clearly outlining the Ministry’s concept of ‘user harms’ in the Indian context and facilitate stakeholder consultation around it.”
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[Please note: You can submit your feedback on the proposed rules to the government here by January 17, 2023.]
In addition, the IFF highlighted a number of concerns and uncertainties surrounding the new amendments. “The continuing saga of disappointing amendments to the IT Regulations 2021,” reads one of the sub-heads in his initial comments. Let’s briefly review what they had to say:
- Why regulate online games? The new amendment states that the term “intermediary” will now include “online gaming intermediary” for Part II of the IT Regulations 2021. Previously, this included only social media and important social media intermediaries. The IFF said that “the rationale and justification for introducing one more category of intermediaries has not been shared by the Ministry”.
- Vague definition of “online gaming intermediary”: An online gaming intermediary is defined as “an intermediary offering one or more online games”. The IFF says that this definition contains uncertainty as to “whether online gaming that is not gambling is also regulated under these Regulations”. He also says that this lack of clarity will have a negative impact on innovation and growth in the sector. Calling the definition of online gaming intermediaries “broad”, the IFF raised another relevant issue – it is unclear whether there are services that host games (like the Google Play Store) or just single-player offline modes as well as online multiplayer modes. such as EA Sports titles, etc., will be considered online gaming intermediaries. The IFF also raised the question of whether a game provider or a service provider would be considered online gaming intermediaries. A game provider may be the person who actually creates the game, while a service provider may be the person who distributes the game over the Internet.
- Vague definition of “online gaming”: The amendment defines “online game” as “a game offered on the Internet and accessible through a computer resource if the user makes a deposit in the hope of winning.” IFF emphasized that the concept of “deposit” and “winning” in the bill includes not only “cash” but also “kind”. or “online game currencies” may result in the inclusion of games that do not require any monetary deposit from the user or promise any monetary incentive to the user under “online games” for the purposes of these Rules. thus making such games subject to regulation,” says the IFF.
- Are the proposed rules unconstitutional? The IFF says the provision to regulate online gaming under the IT Act has been inserted directly into the rules without any parliamentary debate, saying these proposed rules may be “wrong, undemocratic and even unconstitutional”.
- More verification: The new amendments list some additional requirements for online gaming intermediaries, including identifying the user and verifying the user’s identity when they create an online gaming account. And this verification procedure will be same as the rules laid down by RBI for regulated entities. This is “relevant” as it gives the Center “extremely broad” powers to classify intermediaries as online gaming intermediaries and exercise regulatory powers for Know Your Customer (KYC). “, – says IFF.
- Self-regulatory body: The new amendment requires online gaming intermediaries to register with a self-regulatory body. The Ministry of Information Technology has the authority to assess and register these self-regulatory bodies. It can also suspend or cancel the registration of a self-regulatory body under the new amendments. The IFF said, “While self-regulatory bodies have powers to register online gaming intermediaries, the broad powers given to the Ministry are more a matter of high-level government discretion to determine which self-regulatory bodies exercise those powers and, more importantly, how they exercise those powers.”
- The government can declare any game as an online game: Rule 6A empowers the government to declare any game as ‘online game’ even if it is available without making any deposit. This means that the government can decide if the game can be addictive or cause “harm among children” or if it is for national security, etc. IFF says “harm among children”.
- Comply with the rules or waive the guarantees: If an intermediary does not comply with these rules, it will not be protected from third-party data posted on the intermediaries’ platform. “Furthermore, the intermediary will be liable for punishment under any applicable law, including the provisions of the IT Act, 2000 and the Indian Penal Code.”
IFF also pointed out how controversial the IT Regulations have been in the past. “The Bombay High Court passed an order suspending the operative provisions of Part III (IT Rules) in August 2021. In September 2021, the Madras High Court agreed that the IT Rules, 2021 may pose a threat to the independence of the media and also violate Article 19(1)(a) of the Constitution in making the Rules mandatory for intermediaries.”
Please note that these are preliminary views released by the IFF, more detailed information may be published later.
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