Ministry of Electronics and Information Technology (“MEITY”) in exercise of the powers conferred by sub-section (1) and clauses (z) and (zg) of sub-section (2) of section 87 of the Information Technology Act, 2000 made the draft rules (“Rules”) to amend the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
The following amendments are proposed in the draft rules:
Insertion of Definitions:
- Rule 2(qa) 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. Deposit means deposit actually made or committed, in cash or in kind, by the user for participating in an online game.
- ‘winnings’ means any prize, in cash or in kind, that is distributed or intended to be distributed to a user of an online game based on the performance of the user and in accordance with the rules of such online game.
- Rule 2(qb) defines “online gaming intermediary” as an intermediary that offers one or more than one online game.
- Due diligence by Online Gaming Intermediary
Rule 3 mandates an online gaming intermediary to observe same due diligence that are done by social media intermediary and significant social media intermediary. Online gaming intermediary shall inform its rules and regulations, privacy policy and user agreement to the user in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice and shall make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that is not in conformity with any law for the time being in force in India, violates any law for the time being in force including any such law relating to gambling or betting or the age at which an individual is competent to enter into a contract.
Rule 3(ma) of the Rules casts an obligation upon an online gaming intermediary that before hosting or publishing or advertising an online game for a consideration it shall ascertain from the online gaming intermediary and verify from the concerned self-regulatory body that such online game has been registered with such body, and shall display on its website, mobile based application or both, the fact of such registration.
- Additional due diligence to be observed by online gaming intermediary
Rule 4A provides for some additional due diligence to be observed by Online gaming intermediary, it includes the following :
- It has to display a demonstrable and visible mark of registration on all online games registered by the self-regulatory body.
- the rules and regulations, privacy policy, terms of service and user agreements of the online gaming intermediary shall inform the user of its computer resource of all the online games offered by the online gaming intermediary, along with the policy related to withdrawal or refund of the deposit made with the expectation of earning winnings, the manner of determination and distribution of such winnings, and the fees and other charges payable by the user for each such online game.
- the know-your-customer (KYC) should procedure followed by the online gaming intermediary for registration of the account of a user.
- Grievance officer, Chief Compliance Officer and nodal contact person
Draft rules provides that an online gaming intermediary shall prominently publish on its website or mobile based application or both the name of the Grievance Officer and her/his contact details as well as mechanism by which a user or a victim may make complaint against violation of the relevant provisions. Such Grievance Officer shall be an employee of the online gaming intermediary and shall be resident in India.
An online gaming intermediary shall also appoint a Chief Compliance Officer, who shall be a key managerial personnel or such other senior employee of the online gaming intermediary who is resident in India, and who is responsible for ensuring compliance with relevant laws and for coordination with law enforcement agencies and their officers to ensure compliance with their orders.
It shall appoint a nodal contact person for 24×7 coordination with law enforcement agencies and officers to ensure compliance to their orders. She/He should be an employee of the online gaming intermediary, other than the Chief Compliance Officer and a resident of India.
- Self Regulatory Bodies
The drafts rules provide that self regulatory bodies may be registered with MEITY if they fulfill the criteria as mentioned in Rule 4B(3) of the rules. Such self regulatory bodies may register online games of such online gaming intermediaries who are its members and fulfills the criteria provided under Rule 4B(5) of the Rules. The Central government may refer to the report subsisted by such Self-regulatory bodies while issuing a direction under section 69A of IT Act.
The rules mandates self regulatory bodies to establish a mechanism for time bound resolution of such complaints of users that have not been resolved by the grievance redressal mechanism of its member online gaming intermediaries.
- Any other game as an online game
Though the rules are applicable only to those games that are offered on the Internet and are accessible by a user through a computer resource if she/he makes a deposit with the expectation of earning winnings. However, under Rule 6A of the rules MEITY may notify any game, made available on the Internet and accessible by a user through a computer resource without making any deposit, as an online game if such game is likely to create a risk of harm to the sovereignty and integrity of India or security of the State or friendly relations with foreign States or public order, causes addiction or other harm among children.
- Non observance to the Rules
Where an online gaming intermediary fails to observe the above rules, the provisions of sub-section (1) of section 79 of the Act shall not be applicable to such online gaming intermediary and the it shall be liable for punishment under any law for the time being in force including the provisions of the IT Act and the Indian Penal Code.
Public can submit its comments on the draft rules by January 17.