“I think it is very clear they are trying to regulate publishers under the garb of intermediaries. They want to bypass the parliamentary statute and they want to fit something which is currently not fitting under the existing law,” gaming lawyer Jay Sayta remarked at MediaNama’s event on the Impact of the Online Gaming Rules.
The proposed online gaming rules classify online gaming platforms as intermediaries and require them to be part of a self-regulatory body, only publish games approved by such bodies, follow know-your-customer (KYC) norms, and set up a grievance redressal system, among other things.
At our discussion, we had people argue on both sides: why gaming platforms can be considered intermediaries and why they cannot. While we didn’t reach a consensus, what was clear was that the government should either clarify this classification or make separate legislation for online gaming platforms or include them under the upcoming Digital India Act, rather than regulate them under the IT Act, 2000.
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Why they should NOT be treated as intermediaries:
- Offering is an act of publishing: Referring to the definition, which states that online gaming intermediaries are intermediaries that offer one or more online games, Nikhil Pahwa opined that offering is an act of publishing and not of connecting, which is what intermediaries do.
- They consider themselves as publishers: “Gaming companies traditionally have said that they are publishers. They have treated themselves like movie studios. […] Secondly, there is a part of the interaction that happens with a medium separately and a part of the interaction with other players. So it’s a three-way thing that happens with individuals and the medium. It’s not a conduit under the traditional definition of an intermediary,” Nikhil Pahwa explained.
- How can they be given safe harbour provisions when they control content: “According to Article 79 of the [IT] Act, (which, deals with safe harbour provisions) an intermediary can claim exemption only if they are not controlling the content. Here, the intermediary would be publishing the game itself. Then how can we categorize them like intermediaries,” an attendee asked.
- The definition in the IT Act is with respect to the content offered by the platform: Referring to the definition of intermediary proposed in the IT Act, one of the attendees pointed out that the definition is “with respect to the content in question. So, if I have a game and there is an individual on that game who says something, that’s third-party content vis-à-vis the game. But the game itself [is not]. If someone creates a game that promotes anti-semitic content, that’s not an intermediary anymore. That’s a publisher.” The attendee was attempting to distinguish features like the chat feature on a gaming platform from the actual game itself.
- Rules force an intermediary definition on gaming platforms: “These rules try to apply the intermediary definition to a publisher which travels beyond the scope of the IT act,” gaming lawyer Jay Sayta remarked.
- Will mod creators also be treated as intermediaries then: “Do mod creators, specifically in games like World of Warcraft or Age of Empires, end up being intermediaries now,” an audience member asked.
- Will telecom operators and hosting providers be intermediaries: If anyone who gives access to online games is considered an intermediary, will telecom operators, ISPs, and hosting providers like AWS also be classified as online gaming intermediaries, Nikhil Pahwa asked.
Why they should be treated as intermediaries:
- The definition of intermediaries has evolved: If we go by the specific definition for intermediaries in the IT Act, then “none of the companies today are intermediaries. Even your social media platforms use algorithms and other stuff [to determine what content to display]. I’m saying we have moved away from that here,” one of the lawyers explained.
- As long as they carry any third-party content they are intermediaries: “As long as you are carrying some third-party content between two users through the electronic record, you are an intermediary. A lot of different types of entities fall under that definition,” one of the attendees remarked, adding that even platforms like Facebook and Twitter publish their own content but are still classified as intermediaries because they host third-party content as well.
- Platforms can claim to be an intermediary when there are issues between two players: “Let’s put it this way. I think if I’m publishing a game which has, let’s say, pornographic content, you can’t claim safe harbour under these rules. But what I can claim, say two players are playing and one player defrauds the other player. Then this online gaming intermediary can say, I’m an intermediary. I have taken these due diligence measures,” Dhruv Garg from AIGF remarked.
- How is a gaming platform different from an intermediary like Uber: “Let’s take a fantasy sports platform. A fantasy sports platform is connecting two people to play against each other. How is that very different from an Uber connecting a driver to a passenger when that can be clarified as an intermediary,” one of the audience members pointed out. Uber can be called an intermediary because it connects two people, here an online gaming intermediary is defined as an intermediary offering one or more online games, Nikhil Pahwa countered.
- Rules cover platforms that offer other people’s games: One audience member argued that the rules only intend to cover platforms that offer games on behalf of others, which is why they are classified as online gaming intermediaries. Another attended seconded this, explaining that “online gaming intermediary means an intermediary, which is [according to] 2(1)w, that offers one or more than one game that is offered on the internet. So offers a game already offered on the internet, not that it is publishing the game directly, but it is giving you access to something that has already been made available on the internet.” However, we are not sure if this is the case because the rules were also intended to target platforms that only offer their own games.
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