The Advertising Standard Council of India ("ASCI") issued the guidelines for advertisers in relation to Online Gaming for Real Money Winnings (the "Gaming Guidelines")1, effective from December 15, 2020. The Gaming Guidelines address two key concerns around advertising of online games relating to real money: (i) risks of financial loss; and (ii) addictive nature of such games. The Gaming Guidelines were issued after consultation among Ministry of Information and Broadcasting (the "MIB"), the Ministry of Consumer Affairs, Ministry of Electronics and Information Technology, and industry stakeholders such as ASCI, News Broadcasting Association, Indian Broadcasting Foundation, All India Gaming Federation, Federation of Indian Fantasy Sports and Online Rummy Federation.
Following this, the MIB has also issued an advisory on December 04, 2020 (the "Advisory")2, directing all private television satellite channels to ensure that advertisements appearing on television channels adhere to the Gaming Guidelines.
- OVERVIEW OF THE GAMING GUIDELINES
2.1 The Gaming Guidelines are aimed at standardizing advertisements and ensuring that all advertisements carry the required warnings.
2.2 The Gaming Guidelines require advertisers to ensure the following:
(a) No depiction of minors
Online gaming advertisements should not depict a minor engaged in playing an online game for real money winnings or suggest that a minor can play such games.
All advertisements are required to include the following disclaimer:
'This game involves an element of financial risk and may be addictive. Please play responsibly and at your own risk'.
In addition, disclaimers in the advertisements are required to conform to the below mentioned rules:
- (i) Advertisements in print and static form: Disclaimers within advertisements in print and static form should: (a) occupy at least 20% of the advertisement space, (b) be in the same language and font, (c) not be in italics, and (d) be in the same direction as the majority of the text, and be prominent and legible.
- (ii) Advertisements in audio visual mediums: Disclaimers in audio/video advertisement, should: (a) be placed at normal speaking speed at the end of the advertisement, (b) be in the same language as the advertisement, (c) be in both audio and visual format (for advertisements on audio-visual mediums).
(c) Not to portray online gaming as an income opportunity
Advertisements should not propose 'online gaming for real money winnings' as an income opportunity or an alternate employment option.
(d) No comparison of success
Advertisements should not suggest that a person engaged in gaming activity is more successful as compared to others.
- BRIEF OVERVIEW
3.1 Gaming in India is governed by the central legislation, Public Gambling Act. 1867 ("PGA"), as well as specific state legislations – all of which prohibit gambling and betting. However, the PGA3 is not applicable to games of mere skill4. Several judicial precedents in India have observed online fantasy sports to be 'games of skill' as they involve exercising a fair amount of knowledge and judgment and the outcome of the game is influenced by the gamers knowledge and skill5. Similarly, most state legislations allow games involving mere skill; however, the states of Assam6 and Orissa7, do not provide any specific exemption for 'games of skill'; the state of Telangana8 specifically prohibits even games of skill; and the states of Nagaland9 and Sikkim10 permit online gaming subject to a valid license. Recently, the states of Tamil Nadu11 and Andhra Pradesh12 have passed an ordinance in their respective state amending their relevant legislations on gaming, to restrict online games of skill and/or chance in India. Accordingly, online gaming in the States of Assam, Orissa Telangana, Nagaland, Sikkim, Tamil Nadu and Andhra Pradesh is not permitted (these states, "Restricted States").
3.2 The Gaming Guidelines and the Advisory appear to have been issued in view of concerns regarding misleading advertisements in relation to online gaming being broadcast on the channels. Additionally, the Advisory requires all broadcasters to ensure that advertisements do not promote any activity which is prohibited by law. Consequently, this would mean that no advertisement for online games can be broadcast in the Restricted States. However, the Advisory does not provide for any penalty for violation of the Gaming Guidelines by broadcasters.
3.3 Interestingly, the Niti Aayog has also published a report on 'Guiding Principles for the Uniform National-level Regulation of Online Fantasy Sports Platforms' proposing a self-regulatory body for fantasy sports and has sought comments from stakeholders on the draft13.
- INDUSLAW VIEW
We note that while ASCI's Gaming Guidelines are self-regulatory in nature and applicable to advertisers, the Advisory issued by MIB is in the nature of a direction addressed by MIB to private television channel or broadcasters that may run such advertisements.
The online gaming industry is clearly growing at an exponential rate, given the overall digital era and digitalization penetrating in every sector. While having a framework that provides clear guiding principles for gaming platforms and advertisements relating to such games and platforms, may be a positive step in the direction of promoting a safe and fair environment for consumers, any regulatory regime that may be proposed in future would need to be carefully evaluated and thought through so as to not strictly prohibit gaming activities itself so long as safety of the consumer is ensured.
3 Section 12, the Public Gambling Act. 1867
4 The Supreme Court in the case of Dr. K R Lakshmanan v. State of Tamil Nadu and another (AIR 1996 SC 1153) and M J Sivani and Ors v State of Karnataka and Ors. (AIR 1995 SC 1770) has held "mere skill" to mean a substantial amount of skill or a game in which skill is the controlling factor, and that this would have to be ascertained based on the facts available in each case.
5 Varun Gumber v. Union Territory of Chandigarh, 2017 (4) RCR (Criminal) 1047; Gurdeep Singh Sachar v. Union of India and Others, Bombay High Court, Criminal PIL Stamp No. 22 of 2019
6 The Assam Game and Betting Act, 1970
7 The Orissa Prevention of Gambling Act, 1955
8 The Telangana Gaming (Amendment) Act, 2017
9 the Nagaland Prohibition of Gambling and Promotion and Regulation of Online Games of Skill Act, 2015
10 The Sikkim Online Gaming (Regulation) Act, 2008
11 The Tamil Nadu Gaming and Police Laws (Amendment) Ordinance, 2020
12 The Andhra Pradesh Gaming (Amendment) Ordinance 2020
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