With several states updating their laws to regulate gambling websites and apps, legal experts weigh in on what it means for international platforms and whether the government can take action.
During the UEFA European Football Championship, Sony LIV, which streamed the tournament in India, had Betway, a Malta-based online betting site, as a “partner,” according to Afaqs. Betway is a sports betting app, and it is not the only one advertising its services in India, even though sports betting, and advertising thereof, is banned in most states. Another major sports betting site that advertises on Indian sports livestreams is Dafabet, a website that says on its terms and conditions that its governing jurisdiction is limited to England and that users in countries with betting bans “should note” that:
“You irrevocably and unconditionally represent and warrant, without reservation or limitation, to the Company that you will not access or register an Account at any time […] from within a jurisdiction that prohibits the access or use of the Website and/or the Services for any reason whatsoever.”
Of course, that brings up the question of why Dafabet advertises its services in India, where most states ban its core activity (the company advertises an associated brand, DafaNews, as a surrogate advertising strategy). But since these websites are based outside India, is it legal for Indians to bet on them?
Focus is more on facilitators
Seshank Shekar Rayaprolu, counsel at LawNK, told The Ken that similar to pornography, officials tend to focus more on the people facilitating the activity than the ultimate consumers, or in the case of betting apps, the bettors. So what happens when the facilitators are abroad? Sarthak Doshi, a lawyer working with Ikigai Law, told MediaNama that in many states, the facilitation of gambling and betting is done by regulated establishments called “common gaming houses”. “Whether a foreign betting website is a ‘common gaming house’ is yet to be tested by Indian courts,” Doshi said.
“But it is arguable that they are not. A ‘common gaming house’ is defined (under most state gambling laws) as a house, walled enclosure, room, or place – all having a reference to a physical location. Since foreign websites are completely digital, one can say that they are not a ‘common gaming house’ and accordingly, a person playing on such websites is not in breach.” he added.
However, Doshi said, this doesn’t apply in states that explicitly included websites and apps in their newly amended gambling and real money gaming laws. Telangana, Andhra Pradesh, Tamil Nadu, Nagaland, Sikkim, and Meghalaya, Doshi said, have expanded their definition in this regard. The Uttar Pradesh State Law Commission has recommended a similar change to Chief Minister Yogi Adityanath.
You can read about the above states’ gaming/gambling law amendments here:
- Telangana on December 2, 2017 notified an amendment to its Gaming Act in the Telangana Gazette that included cyberspace in the definition of gaming houses.
- Andhra Pradesh amended the same act (both states inherited the 1974 law) last year, exposing gamblers to criminal prosecution.
- Tamil Nadu in 2020 passed an ordinance banning online betting, rummy, and poker, with some exceptions for games of skill.
- Nagaland started a license system for online games of skill while updating its legislation to address online real money gaming spaces; the state welcomes real money gaming.
- Sikkim since 2008 has continuously updated its gaming law to regulate stakes-based gaming, and like Nagaland welcomes real money gaming.
- Meghalaya in March passed an ordinance to regulate and derive revenues from real money gaming activities.
Can the government act?
The problem with regulating international betting sites is that the internet itself is regulated by the central government, while gambling is regulated by the states. As such, an individual state can’t really get an errant website or app blocked within its borders. Andhra Pradesh tried. Last October, the state’s chief minister YS Jagan Mohan Reddy wrote to then IT Minister Ravi Shankar Prasad asking for assistance in blocking access to real money gaming websites that the state had just outlawed. These websites remain accessible, according to The New Indian Express.
As TNIE’s reporting points out, Reddy was far from the first to try. One Avinash Mehrotra reportedly approached the Delhi High Court in 2019 asking for such sites to be blocked online. The union government’s lawyer then reportedly said in an affidavit that the central government doesn’t have the legislative powers to take action against what was essentially a state subject. Hence the stalemate.
“The ambiguity on the application of state gambling laws on digital platforms/foreign websites is all the more reason why India should enact a central law on gaming which addresses these issues consistently,” Doshi argued. “And is better equipped to enforce the law on foreign websites.”
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