On the second day of this new year, the Information Technology (IT) ministry proposed new amendments to the IT Rules, 2021, which aim to regulate online games under the ambit of the IT Act, 2000.
But why was this done? To safeguard people against “potential harms”, the government said. But what is the meaning of “potential harm”? There can be endless meanings, from suicidal tendencies to bad cultural influences for children. The word “harm” has been used in the amended rules as well.
In its preliminary comments, the Internet Freedom Foundation (IFF) said, “in the absence of any discussion paper being open to the public, underlining the Government’s intent, we are unsure as to how they assess “potential harms” to users.” It added, “we request the Ministry to publish a discussion/ white paper that clearly sets out the Ministry’s conception of ‘user harms’ in the Indian context and to facilitate a 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 to that, the IFF highlighted several concerns and ambiguities with the new amendments. In its initial comments, one of the sub-heads reads, “The ongoing saga of disappointing amendments to the IT Rules, 2021”. Here’s a brief overview of what they have to say:
- Why regulate online gaming? The new amendment states that the term “intermediary” will now also include “online gaming intermediary” for part II of the IT Rules, 2021. Earlier, it only included social media and significant social media intermediaries. IFF said that the “logical reasoning and justification behind introducing yet another category of intermediaries has not been shared by the Ministry.”
- Ambiguous definition of “online gaming intermediary”: An online gaming intermediary is defined as “an intermediary that offers one or more than one online game”. In this definition, there’s ambiguity on “whether a non-gambling online game will also be regulated under these Rules,” the IFF says. It also says that such lack of clarity will negatively impact innovation and growth in this sector. Calling the definition of online gaming intermediaries “broad”, the IFF raised another pertinent issue—it is not clear whether services that host games (like Google Play Store) or games that include just single-player offline modes as well as online multiplayer modes such as EA Sports titles, etc., will be considered online gaming intermediaries. IFF also raised the question if both, the game provider and service provider will be considered online gaming intermediaries. The game provider could be the one who actually creates the game and the service provider could be the one who distributes the game on the internet.
- Ambiguous definition of “online game”: The amendment defines “online game” as “a game that is offered on the Internet and is accessible by a user through a computer resource if he makes a deposit with the expectation of earning winnings”. The IFF highlighted that the definition of “deposit” and “winning” in the Bill includes not just “cash” but “kind” as well.”While the ‘kind’ component may have been introduced to cover for non-monetary ‘token’ or ‘online game currencies’, it may lead to the consequence of including games that don’t require any monetary deposit from the user or promise any monetary incentives to the user under the ambit of “online games” for the purpose of these Rules and thus subjecting such games to regulation,” the IFF says.
- Are proposed rules unconstitutional? The IFF says these proposed rules are “misguided, undemocratic, and may even be unconstitutional” since the provision of regulating online games under the IT Act was introduced directly in the rules without any parliamentary deliberations.
- More verification: The new amendments list out some additional requirements for online gaming intermediaries including identifying the user and verifying his identity when a user creates an online gaming account. And this verification procedure will be the same as the one prescribed by the RBI for the entities it regulates, the rules state. This is “concerning” because it grants the Centre the “over-broad” powers of classifying intermediaries as an online gaming intermediary and exercising regulatory power for Know Your Customer (KYC), “all of which is in the absence of clear legislative basis,” the IFF says.
- Self-regulatory body: The new amendment mandates online gaming intermediaries to be registered with a self-regulatory body. The IT ministry has the power to assess and register these self-regulatory bodies. It can also suspend or revoke the registration of a self-regulatory body, as per the new amendments.The IFF said, “While the self-regulatory bodies are empowered with registering online gaming intermediaries, the broad powers given to the Ministry further bring a high level of government discretion in determining which self-regulatory body will exercise these powers, and more importantly, how it will exercise these powers.”
- Government can declare any game as an online game: Rule 6A empowers the government to declare any game as an “online game”, even if it is accessible without making any deposit. This can be done if the government feels the game can lead to addiction or cause “harm among children”, or if it is for national security, etc.”Here, once again, the Ministry has failed to expand on what it means/ understand by “harm among children” the IFF says.
- Follow rules or give up the safeguards: If the intermediary does not follow these rules, it will not be protected from third-party information hosted on the intermediaries’ platform. “Furthermore, the intermediary shall be liable for punishment under any law for the time being in force including the provisions of the IT Act, 2000 and the Indian Penal Code.”
The IFF also pointed out how contentious the IT Rules have been in the past. The “Bombay High Court ordered a stay on the operative provisions of Part III (of the IT Rules), in August 2021. In September 2021, the Madras High Court agreed that the IT Rules, 2021 may threaten the independence of the media, and also that Article 19 (1) (a) of the Constitution may be infringed in how the Rules may be coercively applied to intermediaries”.
Please note that these were just initial thoughts released by the IFF, more detailed insights may be published later.
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