The popularity of online gaming platforms has soared high in recent times with enthusiasts from all age groups. The rising trend of demand for such games has made it critical to speculate its promotion through advertisements. The Ministry of Information and Broadcasting (“MIB“) has issued an advisory (“Gaming Advisory“) dated June 13, 2022 to the print media, private satellite television channels and publishers of news and current affairs content on digital media to adhere to the Advertising Standards Council of India guidelines on advertisements of online betting and gaming platforms1.
Under the Indian Constitution, gambling is a state subject. The Public Gambling Act, 1867 is the only central legislation on the subject which precedes the age of online gaming. The States have enacted their own piece of legislation to regulate gambling activities. The Indian Law, through landmark judgements, have differentiated between ‘game of skill' and ‘game of chance'. In K.R. Lakshmanan vs. State of Tamil Nadu and Ors.2, the Supreme Court observed that competitions which involve substantial skill are not gambling activities and can be instead classified as business activities, the protection of which is guaranteed by Article 19(1)(g) of the Constitution. The Courts in India have applied the aforementioned principle in the context of ‘online gaming'. The Karnataka High Court in All India Gaming Federation v. State of Karnataka3 struck down the legal provisions which banned online gaming, including games of skill. The Madras and Tamil Nadu High Courts have also struck down similar legislations upholding the legality of skill-based online games.
These online games are popularly phrased as Real-Money Gaming meaning that the players play the game for monetary gain. While in a majority of states, online real-money gaming has been interpreted by Indian Courts to fall within the exception ‘game of skill', such games are illegal in in a few other states of India. The States of Assam, Odisha, Telangana and Andhra Pradesh prohibit activities in relation to online gaming. The States of Sikkim, Nagaland and Meghalaya have prescribed a licensing regime for the same. In addition to this illegality, the advertisement of online betting poses significant financial and socio-economic risk for the consumers, especially the youth and children.
The Gaming Advisory sets forth the guidelines for online gaming advertisements and observes that such advertisements are misleading and do not appear to be in conformity with the Consumer Protection Act 2019, Advertising Code under the Cable Television Networks Regulation Act, 1995 and advertisement norms under the Norms of Journalistic Conduct laid down by the Press Council of India under the Press Council Act, 19784. In this context, the Central Consumer Protection Authority has also issued guidelines for prevention and endorsement of misleading advertisements earlier this month (June 2022)5.
The MIB had issued an earlier advisory in December 2020 to comply with the guidelines on online gaming issued by the Advertising Standards Council of India (“ASCI“). These guidelines were issued in the backdrop of increased frequency of advertisements on online gaming, fantasy sports with inadequate disclaimers6. Accordingly, the ASCI set out guidelines on online gaming as follows:
Age Restriction: Advertisements on gaming should not depict anyone below the age of 18 years or depict a minor playing an online game for real money winnings. Hence, no gaming advertisement shall suggest that a minor can play games to earn money.
Disclaimers: Advertisements must strictly carry a disclaimer on the financial risk and the risk of addiction associated with real money gaming. Such disclaimers should not occupy less than 20% of the space in the advertisement and will need to be in both audio and video formats. The disclaimer must be in the same language, font face, font size and colour, therefore, ensuring readability. The disclaimer guidelines laid out in the ASCI code must also be followed in this regard7.
Restriction on Depiction of Income Opportunity: Advertisements should not present online gaming for real money winnings as an income opportunity or an alternate employment option. Hence the portrayal of success or suggestion that a person engaged in gaming activities is more successful than others, is strictly prohibited.
A standardised guideline was the need of the hour to address the financial risk involved and addictive nature associated with all forms of for-money skill gaming. With approximately 420 million active online gamers, India's online gaming industry has registered rapid growth and is expected to grow to 5 billion by 2025. The way forward for India's gaming industry will be to create a single law. NITI Aayog's draft report on ‘Guiding Principles for the Uniform National-Level Regulation of Online Fantasy Sports Platforms in India' proposes a sole self-regulatory body for the gaming industry8. Accordingly, after much deliberation, the Online Gaming (Regulation) Bill was introduced in the Lok Sabha on 1st April 20229. The proposed bill aims to bring in a robust regulatory framework by constituting an ‘Online Gaming Commission' to oversee the prevailing uncertainty and illegal activities.
A well-regulated environment and transparent marketing of online gaming platforms through advertisements will hopefully bring in accountability alongside a potential to draw foreign direct investment in this sector. This may just outweigh any negatives of online gaming and create a much safer environment for consumers as well.
Footnotes
2 1996 (1) CCC 77
3 2022(2) AKR 422
4 MIB Advisory, supra note 1
5 https://consumeraffairs.nic.in/sites/default/files/file-uploads/latestnews/CCPA%20Notification.pdf
6 MIB Advisory, supra note 1
7 https://ascionline.in/images/pdf/asci_code_of_self_regulation.pdf
8 https://www.niti.gov.in/sites/default/files/2020-12/FantasySports_DraftForComments.pdf
9 http://164.100.24.219/BillsTexts/LSBillTexts/asintroduced/78%20of%202022%20as%20introduced.pdf
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