As online gaming continues to grow in India, there has been a rise in the number of companies that offer online games in the country. Entities and platforms that offer online games to players are referred to as ‘online game brokers.’ This was further defined through an amendment to the Information Technology (Broker Guidelines and Digital Media Ethics) Rules 2021 (hereafter referred to as ‘Rules’).
As per the Information Technology Act, 2000, individuals who receive, store or transmit electronic records on behalf of another individual or provide any services related to that record, including telecommunication service providers, network services providers, Internet service providers, web providers, search engines, online payment sites, etc., are known as ‘intermediaries.’
- While this definition defines ‘intermediary,’ there is no specific definition for an ‘online gaming intermediary’ provided anywhere in the Act. The Government revamped the Rules (hereafter referred to as ‘Amended Rules’) on 6 April 2023 to provide certain Rules related to online gaming. This move aimed to regulate the online gaming industry and ensure it does not violate any rights or break any laws while offering services to the public.
| As per the Amended Rules, ‘online gaming’ is an intermediary that provides one or more online games. In addition, the Amended Rules define ‘online games’ as permissible online real money games and other games that are not online real money games. By bringing online gaming platforms and organizations under the grip of an intermediary, the Amended Rules aim to impose certain rules and responsibilities on them. |
- As per Section II(3)(1)(b) of the Revised Rules, intermediaries must take significant steps to safeguard individuals that use their computer resources from hosting, showing, downloading, publishing, etc. anything that is obscene, pornographic, pedophilic, or sexual in nature.
- In addition, Part II, Section 3 Subdivision 2(b) of the Revised Rules imposes liability on intermediaries removing any material that depicts either partial or complete nudity or a person engaged in sexual activity or behavior. Although the Amended Rules have basically made organizations responsible for their actions that violate the provisions of the IT Act, the Amended Rules themselves are directive in nature. The goal of the Amended Rules is to regulate the unchecked online gaming market in India.
Sexual Harassment in Online Games & the Amended Rules
The new rules have made the online gaming market responsible for their actions while providing a safe atmosphere for all ‘Digital Nagriks’. However, it is vital to note that the industry is still in its early stages and, as such, only the most fundamental issues are being addressed as of now.
Considering the irregularities and the current situation of the online gaming sector in India, the Rules were amended to deal with the following issues:
- Potential Addiction: There have been numerous cases of addiction to online gaming, especially in children and adults, where the latter has even been found to have incurred financial losses due to their addiction.
- Worries related to Inapt Content: The influence such games can have on individuals is surprisingly quite high and, as such, it is imperative to regulate violent depictions and other forms of inapt content. In addition, significant steps must be taken to prevent children from gaining access to such content.
- Advertisements related to online gambling and various betting websites that target Indian users.
- Lack of encryption makes the data of users of online gaming platforms vulnerable to leaks.
While the Amended Rules address the need to regulate the content posted on online gaming platforms, sexual harassment as a whole, which is often found on such websites, is not addressed at all.
Applicability of POSH Act on Online Gaming Intermediaries: Defining Liabilities
Now that the Revised Rules have been announced to exclusively cover online games, which includes real money games, it is vital to understand the extent of an intermediary’s liabilities.
While the Amended Rules discuss the need for a self-regulatory body that can enforce the IT Act along with the rules, this shall also provide a method for regulating the activities of online gaming communities and make sure that they adhere to all relevant laws of the country.
- It must be so considered that if the virtual world is simply an extension of the real world, then the laws of this world should also be applicable to the virtual world.
Considering the income-generating ability of online games, it is vital to realize the applicability of the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereafter referred to as ‘POSH Act’) on the online gaming industry and how intermediaries shall be held liable for the sexual content published on their platforms.
Online Gaming Intermediaries as Employers under the POSH Act
Under this Act, employer refers to an individual who is liable to manage, supervise and control the workplace and fulfill their responsibilities related to their employees.
Online Gaming Platforms as Workplace under the POSH Act
As per the POSH Act, any private sector entity involved in commercial or financial activities, sports facilities, etc. are referred to as a ‘workplace.’
Online Gamers as Employees under the POSH Act
The POSH Act permits employees to file sexual harassment complaints when the term ‘employee’ refers to:
- An individual employed in the workplace for any paid work on a regular, temporary, ad hoc, or daily basis, either directly or via an agent, which includes a subcontractor, with or without the knowledge of the primary employer, whether paid or not paid, works for free or otherwise, whether the employment terms are expressed or implied and includes coworkers, contract workers, interns, apprentices, or referred to as any other similar term.
- Therefore, going by the above-mentioned definition, with respect to online games:
- Online gaming companies are the ‘employers,’
- The gaming platform is the workplace, and
- Employees of the company fall within the ambit of ‘employees’ under the POSH Act.
When can you file Sexual Harassment Complaints vis-à-vis Online Gaming Platforms?
You may only file a sexual harassment complaint when a sexual connotation has occurred at the workplace. Once such a situation occurs, online intermediaries shall be liable under this Act.
For more details on how to file a POSH complaint, you can read our piece Prevention of Sexual Harassment (POSH) Policy in India (hyperlink: https://www.indialawoffices.com/legal-articles/prevention-sexual-harassment-policy-india-posh) You may even find our piece Sexual Harassment in a Digital/Remote Workplace helpful. (hyperlink: https://www.indialawoffices.com/legal-articles/sexual-harassment-digital-remote-workplace)
Conclusion
In case any user faces any form of sexual harassment on any online gaming platform, they have the right to file a complaint for the same under the POSH Act. In addition, after the amendment of Rules, the intermediary itself is liable to prevent such deeds from taking place and, therefore, requires to take significant steps to avoid and address such issues on their platform.
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