INTRODUCTION
"Stopping advertising to save money is like stopping your watch to save time"
– Henry Ford, founder of Ford Motor Company
Taking a cue from Ford's wisdom and realizing the limitless potential offered by the internet to sell and consume, businesses are pouring into their advertising budgets to stand out to the masses and stay competitive. As the country proactively takes steps to implement its 'Digital India' vision, we are witnessing a growing uptick in consumerism, including from rural India, catapulted by instant information dissemination and access.
On the other hand, protecting the Indian consumer has become central to the government and the judiciary, where the latter has actively been setting precedents under the 2019 consumer-protection laws, tightening the grip on misleading advertisements. So, whether it is laws impacting advertising or advertising shaping the laws, for those watching closely, there are perhaps many a "aha!" moments lined up.
What may be equally riveting for the industry is witnessing efforts of the Indian courts to protect the copyright of authors, while continuing to navigate laws around OTT and gaming platforms, bringing home the idea that adoption remains key to India's economic success.
It is with these thoughts that we bring to you Volume XXV of The Recap, a periodic round-up of key developments in the media, entertainment and gaming space in August 2024.
MEDIA AND ENTERTAINMENT UPDATES
DPIIT withdraws its 2016 office memorandum on internet broadcasting following judicial clarification
On August 21, 2024, the Department for Promotion of Industry and Internal Trade ("DPIIT") rescinded an Office Memorandum ("OM") issued on September 05, 2016. The OM had expanded the scope of Section 31 D of the Copyright Act, 1957 ("Copyright Act") to include Indian and foreign internet streaming platforms within its purview.
Section 31D, which was introduced in the Copyright Act via an amendment in 2012, stipulates the requirements which must be met by broadcasting organisations seeking to communicate to the public, by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published. These requirements include inter alia furnishing a prior notice stating its intent of broadcasting, the duration and coverage of the broadcast, ensuring no fresh alterations are made to any such works and maintaining the necessary books of accounts. Later in 2016, DPIIT through the OM, clarified that the term "broadcasting" as defined under Section 31D could not be restricted to only cover radio and TV broadcasting but should also include internet broadcasting organisations.
However, following the decision of the division bench of the Bombay High Court ("Bombay HC") in Tips Industries Ltd. v. Wynk Music Ltd. & Anr. ("Tips v. Wynk") which held that the scheme of statutory license under Section 31D of the Copyright Act did not cover internet broadcasters, DPIIT rescinded the OM. In DPIIT's view, inter alia, internet and digital streaming technologies were prevalent while the 2012 amendment to the Copyright Act was being drafted and the exclusion of the same from the ambit of Section 31D was intentional.
A copy of the 2024 Office Memorandum can be viewed here
The SCC coverage of the Bombay HC division bench order in Tips v. Wynk can be viewed here.
Supreme Court stays Central Government Notification which omitted the approval requirement for ads of Ayurvedic, Unani and Siddha Drugs
The Hon'ble Supreme Court of India ("SC"), vide its order dated August 27, 2024, ("Order") has stayed the notification dated July 01, 2024, ("Notification"), issued by the Ministry of Ayush, Government of India ("Ayush Ministry") omitting Rule 170 of the Drugs and Cosmetics Rules, 1945 ("D&C Rules") thereby negating the need for obtaining permission from relevant authorities prior to making advertisements of Ayurvedic, Siddha or Unani drugs, as explained below.
The Order was passed after the SC noted that the Notification fell afoul of one of the previous orders of the SC dated May 07, 2024, ("May Order") wherein the Ayush Ministry had promised the SC that it would 'withdraw' its previously issued letter dated August 29, 2023 to all state/ union territories licensing authorities, asking them not to take any action against advertisements pertaining to ayurvedic and ayush products under Rule 170 of the D&C Rules ("Letter").
Inserted in 2018 to the D&C Rules, Rule 170 imposes a prohibition on advertisements of Ayurvedic, Siddha, or Unani drugs without obtaining a prior clearance from the state authorities. However, through its Letter, the Ayush Ministry had sought to omit this responsibility of obtaining permission from the license authorities' basis the recommendations of the Ayurvedic, Siddha, and Unani Drugs Technical Advisory Board (ASUDTAB) to omit the impugned Rule. Consequently, the SC in April 2024, sought an explanation from the Ayush Ministry regarding the said Letter and finally, vide its May Order, directed the Ayush Ministry to rescind the Letter.
However, noting that instead of withdrawing its Letter, the Ayush Ministry had issued the Notification strengthening the content of the Letter, thereby contravening the May Order, the SC, vide its Order quashed the Notification.
A copy of the Order can be viewed here.
A copy of the May Order can be viewed here.
A copy of the Letter can be viewed here.
A copy of the Notification can be viewed here.
CCPA issues a penalty order on Sriram's IAS for misleading consumers through its advertisement on UPSC Civil Service Exam 2022
The Central Consumer Protection Authority ("CCPA"), vide its order, has imposed penalty of INR 3,00,000 (Indian Rupees Three Lakh) on Sriram's IAS ("Institute") for making misleading claims in relation to its advertisement on UPSC Civil Service Exam 2022 ("UPSC Exam"). Upon investigation, CCPA found that while the Institute had advertised various types of courses, the information with respect to the course opted by the advertised successful candidates in the UPSC Exam results were deliberately concealed in the advertisement, thereby falling within the ambit of a misleading advertisement as defined in Section 2(28) of the Consumer Protection Act, 2018 ("CPA"). Further, it was also revealed that most of these candidates had cleared their preliminary and mains rounds, by themselves, without using the courses offered by the Institute, another fact which was not disclosed by the latter.
Such acts of concealment, as per the CCPA, induced a false belief among the consumers that all the successful candidates so claimed by the Institute had opted for the paid courses advertised by the Institute on its website. Moreover, not disclosing that the Institute had only offered guidance to these successful candidates who had already cleared the preliminary and mains rounds of the UPSC Exam created a huge impact on the consumers. Drawing attention to Section 2(28)(iv) of the CPA on misleading advertisements in relation to deliberately concealing important information, CCPA decided to impose a monetary penalty on the Institute.
An official coverage of the above order as published by the Press Information Bureau of India can be viewed here.
Indian athletes take a stand to safeguard their publicity rights by various brands
Following a successful stint at the Olympics 2024, the representing sports marketing agencies have issued legal notices on behalf of Olympic medallists, PR Sreejesh and Manu Bhaker (collectively "Sportspersons") to brands for using their image and names in marketing campaigns without obtaining their prior authorisation or having any official association with the Sportspersons or international or Indian Olympic committees. It was reported that over two dozen brands had indulged in the unauthorised use of the Sportspersons' names, images and likeliness, all of which constituted a violation of their respective personality rights for the purpose of making commercial gains, a practice which has time and again been frowned upon by various courts of the country.
The development comes at a time where celebrities have, time and again, raised concerns about infringement of their respective personality rights. Last month, the Bombay HC had granted an ad-interim injunction in favour of Arijit Singh in a bid to protect his 'personality rights. Similar issues have also been voiced be other celebrities in the past including Amitabh Bachchan, Daler Mehndi, Anil Kapoor etc.
The media coverage on the above development as reported by Economic Times can be viewed here.
A comprehensive analysis of the Bombay HC was covered in the previous edition of our Recap and can be viewed here.
ASCI publishes study titled 'Conscious Patterns' to uncover the prevalence of dark patterns in Indian Apps
With its intent of expanding consumer awareness, the Advertising Standards Council of India ("ASCI") published its report on August 01, 2024, titled 'Conscious Patterns' ("Report") to reveal the prevalence of dark patterns by the applications in the country. As per the Report, 52 (fifty-two) out of 53 (fifty-three) popular applications in India employed deceptive UI/UX practices (referred to as the dark patterns) which mislead or trick users into doing something they did not intend to do. The tested apps had been downloaded collectively over 21 (twenty-one) billion times.
Key findings of the Report disclosed 12 (twelve) distinct dark patterns, with the most prevalent being privacy deception, employed in 79% (seventy-nine percent) of the apps used. More than 80% (eighty percent) of the apps exhibited deceptive patterns in the settings/profile section. The three sectors with highest dark pattern employment rates were health-tech, travel booking and e-commerce. While the health-tech apps frequently employed false urgency, e-commerce apps were also found to make it difficult for users to delete accounts. For delivery and logistics apps, basket sneaking was the most employed dark pattern. Streaming services had the lowest incidence of dark patterns followed by the gaming sector.
The Report also provided examples of more ethical designs as alternatives, and a scoring tool (Conscious website) that can aid a more conscious app-design. The tool can identify presence of deceptive patterns which allows professionals to assess ethical standing of their apps. The Report also published a gallery of flows and patterns which were not only consumer friendly, but also safe and reliable.
A copy of the Press Release of the Report can be viewed here
Summary of the copy of the Report can be viewed here.
Bombay HC sets aside Goa Home Ministry circular which exempted musical performances at weddings from requiring copyright permissions
Following a petition filed by Phonographic Performance Limited ("Petitioner"), the Bombay HC, vide its order dated August 13, 2024, has quashed the circular dated January 30, 2024 ("Circular") issued by the Home Ministry of State of Goa ("Respondent"), which stated that the performance of musical works at religious ceremonies, including weddings, did not amount to violation of the Copyright Act.
The Petitioner, being the copyright owner of public performance rights in over 4 (four) million international and domestic sound recordings, is engaged in granting licenses to use its entire repertoire on an 'as-is-where-is' basis. Challenging the Circular, the Petitioner made two primary contentions placing reliance on the 2022 decision passed by the Punjab & Haryana High Court ("P&H High Court") in Novex Communications Private Limited v. Union of India2. First, that the Respondent, being an executive arm of the Government, could not assume a legislative role and interpret the limited scope of Section 52(1)(za) of the Copyright Act3 to also consider religious ceremonies involving commercial use of copyrighted works as non-infringing acts. Second, that the Respondent, by sending the Circular to the police, encouraged them to take action against the legitimate collection of royalties by the Petitioner, which in turn infringed upon the Petitioner's statutory right to initiate civil/criminal proceedings against infringers.
On the other hand, the Respondent's position was that the Circular was not intended to impede the Petitioner's civil/ criminal recourses but was aimed at preventing undue harassment to the public and abuse of the policy machinery. The Respondent argued that the Circular had been passed pursuant to its executive powers under the Article 162 of the Indian Constitution and was in line with a similar public notice issued by the Central Government's public on July 23, 20244. Per the Respondent, the term 'bona fide religious ceremony' basis the explanation contained under Section 52(1)(za) of the Copyright Act, included 'a marriage and other social festivities associated with marriage' as well.
In view of the arguments presented, the Bombay HC quashed the Circular and concluded that the Respondent, by expanding the scope of Section 52(1)(za) of the Copyright Act, had disturbed the balance which the Copyright Act sought to achieve between the interest of the rights of the author/owner of the copyright and those claiming protection under Section 52(1)(za).
A copy of the Bombay HC order can be found here.
A copy of the Circular can be viewed on Page 14 of the Bombay HC order.
A copy of the Public Notice can be found here.
The SCC coverage of the Bombay HC order can be viewed here.
Bombay HC issues a takedown order of a defamatory video of Malabar Gold by a YouTuber
The Bombay HC, in its order dated August 7, 2024, has directed Youtuber Shajan Skairah ("Respondent") to take down and delete a video containing several defamatory statements made against Malabar Gold Ltd. ("Plaintiff"). The Respondent alleged that the video was made in connection to termination of an ex-employee of the Plaintiff.
However, in the course of the hearing it was noted that the Respondent was in the habit of using his YouTube channel to make false and defamatory statements. Further, it was noted that the video had been widely circulated garnering over 5,00,000 (five lakh) views and significant engagement, which had caused reputational harm to the Plaintiff.
In the view of the above, the Bombay HC granted the Plaintiff an ad-interim injunction and directed the Respondent to take down the said video and any other video similar in content, or any other format, including but not limited to use of pictures, names, images, likeness which violated the rights of the Plaintiff under Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, from YouTube and other social websites/ platforms.
A copy of the Order can be viewed here.
With the growing menace of spam calls, TRAI releases a consultation paper on TCCCPR-2018
TRAI has released a consultation paper titled 'Review of the Telecom Commercial Communications Customer Preference Regulations, 2018 ("TCCCPR-2018") on August 28, 2024. The TCCCPR – 2018 was implemented in February 2019 and was aimed at protecting consumers from unsolicited commercial communications ("UCC") in the form of promotional calls and text messages.
While entities in the DLT ecosystem largely complied with the TCCCPR-2018 framework, it was noted that certain unregistered entities (hereinafter referred to as unregistered telemarketers ("UTMs")) had started using 10 (ten) digits mobile/landline numbers to make promotional calls to consumers and were also relying on the application of auto dialler/robo calls or commercial communications to bypass the regulations, all of which created nuisance for the consumers.
Accordingly, TRAI, vide its consultation paper, has sought comments from stakeholders on the 16 (sixteen) questions raised by it in relation to such UTMs and the promotional communications made by them. These questions inter alia relate to mandatory consent requirement for receiving promotional communications by auto dialler or robo calls, imposing differential tariffs for voice calls and messages., and include other measures which could be adopted for proactively detecting spam messages and redressal of consumer grievances.
A copy of the consultation paper can be viewed here.
FILMS AND TV IN COURTS: A ROUNDUP
Mumbai Police shuts down Telegram Channel after receiving complaints of content piracy from Disney Star
Mumbai Police has successfully closed the Telegram channel namely, 'BJ Tech Knowledge', for providing unauthorised access to content from some of the known broadcasters including Disney, Sony, Viacom18 and Zee. The move follows the first information report (FIR) filed by Disney Star against the impugned channel which had a user base of more than 5000 (five thousand) members on April 27, 2024. The users reportedly paid INR 300 (Indian Rupees Three Hundred) to access the content from the streaming platforms. Upon the successful payment, the universal resource locater (URL) of the specific content was shared with them, enabling the user to view the same. Following the complaint, the founder of the group, Shri Balaji Asaram Jaybhaye, has been arrested.
The media coverage on the above development as reported by the Economic Times can be viewed here.
Telangana government orders investigation into the makers of the film 'Maidaan'
Notices issued to Meta and Google by Kerala Police for fraudulent gambling advertisements Following allegations of non-payment of royalties to the family of the revered Indian football coach, Syed Abdul Rahim, the Telangana Chief Minister, Mr. Revanath Reddy, has ordered an investigation into the matter. Starring Mr. Ajay Devgan, the movie 'Maidaan' was inspired by the life of Syed Abdul Rahim, who in turn was promised a royalty in exchange for an access to his personal life and records.
Mr. Rahim's family alleged that the film producers were not reachable post the release of the movie in theatres in April 2024. Subsequently, a plea was made by them before the Telangana Chief Minister who has now authorised the Hyderabad police to look into the said allegations. However, as per some other news reports, the makers of the movie, Bayview Projects LLP, have reportedly denied the above allegations as they had been adhering to all the previously agreed consent terms (dated January 29, 2020) agreed between them and Mr. Rahim's family, as per which no dues were to be paid to the latter. In the same clarification, they have also informed that Bayview Projects LLP had not received any notice from the police or any state authority thus far.
The media coverage on the above development as reported by India Herald can be viewed here.
P&H High Court disposes of PIL seeking revocation of certification granted to Kangana Ranaut's 'Emergency'
The P&H High Court has disposed of the public interest litigation ("PIL") filed against the movie 'Emergency' starring Kangana Ranaut. This comes after the P&H High Court was assured by the Additional Solicitor-General of India, Satya Pal Jain, that the film shall strictly comply with the requirements of all the relevant laws including the Cinematograph Act, 2023 and the rules thereunder prior to obtaining the certification of the Central Board of Film Certification ("CBFC"). He further assured the P&H High Court of the implementation of all the necessary precautions by the film, including its adherence to the guiding principles for certifying films such as interest of the sovereignty, integrity of India, security of the state, friendly relations with foreign states, etc. Further, he also assured the P&H High Court that the film would not hurt the sentiments of any religious community. Following the assurances, the P&H High Court decided to dispose of the PIL and not issue any notice. The petitioners were, however, free to avail other remedies, if deemed necessary
Filed by the members of the Sikh community, the PIL had claimed that the Film allegedly targeted the members of the Sikh community and attempted to "destroy the social fabric of Punjab" by spurring hatred between religious groups. Through the petition, the petitioners had also sought necessary directions from the P&H Court to the CBFC and the Union of India to delete the objectionable scenes from the film prior to its release. The petitioners had further requested for the constitution of a special panel comprising certain renowned Sikh personalities for the purpose of examination of the content of the film prior to its exhibition.
The media coverage on the above development as reported by the Tribune can be viewed here.
GAMING UPDATES
Notices issued to Meta and Google by Kerala Police for fraudulent gambling advertisements
Notices have reportedly been issued by the Kerala Police to Google and Meta regarding the hosting of ads connected to fraudulent gambling websites and applications.
Fake advertisements titled "Kerala Megamillion Lottery" and "Kerala Summer Season Dhamaka" were circulating on Telegram, WhatsApp, and Instagram, falsely alleging that state-run lotteries could be purchased online. These ads coerced people into paying INR 40 (Indian Rupees Forty) for fake lottery tickets. After unsuspecting victims purchased these tickets, the operators of these gambling portals also falsified winning tickets, claiming they were worth INR 5,00,00 (Indian Rupees Five Lakh). lakhs.
A cyber patrol reportedly discovered 60 (sixty) applications, 25 (twenty-five) fake Facebook profiles, and 20 (twenty) websites linked to this scam. Consequently, Google was directed by the Kerala Police to remove approximately 60 (sixty) fraudulent gambling and lottery applications from the Play Store. A notice was also issued to Meta, instructing it to take down fraudulent advertisements from its platforms, including Facebook, WhatsApp, and Instagram.
A separate central government investigation is reportedly underway into alleged illegal activities like extortion and gambling on Telegram. This probe is being led by the Indian Cybercrime Coordination Centre ("I4C") under the Union Ministry of Home Affairs, along with the Ministry of Electronics and Information Technology ("MeitY"). These agencies are jointly supervising concerns related to Telegram's operations in India. The arrest of Telegram's founder in Paris regarding the app's moderation policies has reportedly sparked this development, and there are indications that a ban on the platform in India might be considered following the I4C investigation.
The media coverage on the above development can be viewed here.
The media coverage on the above development with respect to Telegram can be viewed here.
AIGDF issues report advocating for content and age-rating systems to safeguard underage players
A report titled 'India's Gaming Industry: Time for Age & Content Ratings?' ("AIGDF Report") has been issued by the All India Game Developers Forum ("AIGDF"). The AIGDF Report has advocated for the implementation of age and content-rating frameworks to protect young players.
The AIGDF Report recommended that industry stakeholders be involved in establishing rating mechanisms and proposed several key points:
- A national content rating system for games should be implemented, modelled on laws governing other domains, such as the Cable Television Networks (Regulation) Act 1995, which addresses publicly available content broadcasted on cable TV.
- The content rating system should account for regionspecific cultural factors when determining a game's age rating, similar to the approach used in the Code of Ethics of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 ("IT Rules 2021").
- Specific content descriptors should be included to indicate the presence of elements such as drug use, violence, language, or sexual content in games, reflecting the nuanced cultural and social contexts of Indian society.
- The domestic rating system should provide easily understandable rating criteria and terminology, aiming to educate both consumers and game developers about content standards..
- Clearly defined and distinct age categories, such as 3+, 7+, 12+, 16+, 18+, etc., should be established based on the developmental and psychological differences among players.
The online gaming sector continues to expand steadily, with over 425,000,000 (four hundred and twenty-five million) domestic gamers, making India the world's second-largest gaming community. The AIGDF Report highlighted that a significant number of minors are part of the Indian gaming demographic. Due to the risks associated with unregulated digital services, the AIGDF Report emphasized the need for content rating to ensure suitability for all age groups and recommended the incorporation of age-rating mechanisms to prevent minors from accessing inappropriate gaming content.
A copy of the report can be viewed here.
Stakeholders in the RMG sector call for the introduction of quality seals for legitimate online games
Stakeholders from the real-money gaming ("RMG") industry have reportedly engaged with representatives from the Union Ministry of Information and Broadcasting ("MIB") to advocate for the implementation of quality seals for legitimate online games, aiming to distinguish RMG activities from online gambling.
This situation has led to delays in implementing a regulatory mechanism for the online gaming sector, including the RMG vertical. Consequently, RMG stakeholders sought a meeting with senior MIB officials to advocate for the introduction of a government-backed "certification and quality seal" for permissible online games. This measure aims to differentiate such games from illegitimate activities like gambling and betting. During their meeting, stakeholders emphasized the industry's struggles due to the absence of a clear regulatory framework and the imposition of higher GST on "specified actionable claims" since October 1, 2023.
To address multiple issues, stakeholders requested not only a certification and quality seal for legitimate games but also recognition from MIB as a "tech company in the gaming space" to distinguish their services. In response, the MIB assured that guidelines would be issued concerning the positioning and advertising policies for RMG, aiming to address the concerns raised by stakeholders.
The IT Rules 2021 establish a co-regulatory model for online gaming, which involves the verification of "online real money games" as "permissible online real money games" by selfregulatory bodies ("SRB") recognized by MeitY. However, this framework has yet to be enforced due to government concerns regarding industry influence over SRB recognition applications. Recent reports have also suggested that the government may propose limits with respect to time and spending on online games, but no official communication has been made, leaving the regulatory framework for the sector unresolved.
Meta Revises WhatsApp's Business Messaging Policy to Permit Real-Money Gaming Advertisements
Meta's WhatsApp Business Messaging Policy ("Messaging Policy") has been updated to permit commercial realmoney gaming advertisements to users in India starting from August 27, 2024.
The Messaging Policy restricts the buying, selling, promoting, or facilitating the exchange of regulated and/ or restricted goods and services ("Regulated Verticals") such as firearms, hazardous materials, and drugs. However, it also codifies limited exceptions on a country-by-country basis, allowing entities in Restricted Verticals to issue advertisements, provided they comply with applicable laws and the Messaging Policy.
With India now included in the list of countries where realmoney gaming ads are allowed under this update, additional prerequisites have been prescribed. Entities must:
- Obtain permission from Meta Platforms by submitting an application form linked in the Messaging Policy; and
- Provide evidence that the relevant products are either licensed by a regulatory authority or "established as lawful" in the country where such ads are permitted.
This update is reportedly linked to Meta's plans to allow companies in the real-money gaming sector to use WhatsApp as a platform for reaching prospective consumers. The relaxation of previous restrictions in the Messaging Policy is expected to help online real-money gaming companies expand their user base by targeting users who have consented to receive promotional messages on WhatsApp.
Meta recently issued clarifications regarding this update, emphasizing that while RMG ads are now permitted, they must still adhere to applicable laws, including the implementation of age-gating protocols, geographic requirements, and regulatory standards through technical and organizational measures. Companies are prohibited from sending messages to individuals under 18 (eighteen) years of age. Meta also stressed that it may limit or revoke a company's access to WhatsApp Business services if there is significant negative feedback, reported harm to WhatsApp or its users, or if the company violates Meta's terms or policies.
The Business Messaging Policy of WhatsApp can be viewed here.
The media coverage on the above development can be viewed here.
DPIIT Note: Differentiating Between Games of Skill and Chance in Relation to FDI in the Gaming Sector
A note has reportedly been issued by the DPIIT to seek feedback from various ministries on distinguishing between games of skill and games of chance, specifically to attract foreign direct investment ("FDI") in the online gaming industry ("DPIIT Note").
The DPIIT Note has called for inter-ministerial discussions to clearly differentiate between games of skill and chance in the context of attracting FDI in the sector. According to an official familiar with the development, the proposal was made to clear the way for FDI in games of skill, considering their popularity and high growth potential. The official emphasized that an independent body should categorize these games to ensure that FDI in online skill-based games is not adversely impacted by the association with gambling.
Notably, the DPIIT Note was introduced after the Prime Minister's Independence Day speech, where Indian professionals were urged to lead the global gaming market and position India as a "global gaming hub". The speech also emphasized nurturing talent in gaming and game development, especially in creating games that reflect India's rich cultural heritage.
The media coverage on the above development can be viewed here and here.
Parliamentary Questions on online gaming during the Budget Session 2024-25
During the Budget Session 2024-25 in the Lok Sabha, a query was raised regarding whether the government was aware that the number of online gamers in India had surpassed that of China, reaching 450,000,000 (four hundred and fifty million). A follow-up question sought to determine if the Indian government planned to implement measures to enforce a moral code of conduct for online games, potentially banning content that promotes crime, violence, or nudity from being accessed by gamers in India.
The Minister of State for MeitY ("MoS MeitY") addressed the query by referring to the amendments made to the IT Rules 2021 in April 2023. These amendments impose due diligence obligations on online gaming intermediaries ("OGIs") and establish a framework for SRBs. notified by MeitY to verify online real-money games under Rule 4A(3) of the IT Rules 2021. It was noted that this framework is set to become effective 3 (three) months after the notification of at least 3 (three) SRBs by MeitY. Regarding the regulation of games featuring content related to crime, nudity, and vulgarity, it was highlighted that such issues are addressed under various provisions of the Information Technology Act, 2000 ("IT Act 2000"), including Sections 66E, 67, and 67A, which deal with violation of bodily privacy and the electronic publication of obscene or sexually explicit material.
In the Rajya Sabha, inquiries were made about the legislations or rules enacted for the regulation of online gaming in India. A subsequent question addressed the steps taken by the government to distinguish online gaming from online gambling.
MoS MeitY responded by referencing the amendments introduced in the IT Rules 2021 in April 2023, which imposed several due diligence obligations on OGIs as discussed above and other intermediaries, such as social media platforms concerning online games. MoS MeitY's response also noted reliance on Entry 34 in the State List of the Seventh Schedule of the Indian Constitution which empowers state legislatures to legislate on matters related to "betting and gambling." Additionally, it was highlighted that unauthorized betting and gambling are prohibited under Section 112(1) of the Bhartiya Nyaya Sanhita, 2023, which categorizes such activities as petty organized crime.
A copy of the Parliamentary question and responses can be viewed here.
Footnotes
2 Novex Communications Private Limited v. Union of India CWP No. 28758 of 2019 (O&M)
3 Section 52(1)(za) reads as follows: “the performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority”.
4 The Central Government, deeming a marriage procession as a religious ceremony for the purposes of Section 52(1)(za) of the Copyright Act, had inter alia cautioned copyright societies against taking any actions which were contrary to the said Section.
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