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Gaming Law Conference 2022

 

April 30, 2022

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In February 2022, the Karnataka High Court struck down the ban on real-money gaming activities. The Court's judgment hinged upon multiple aspects, with the Court construing the act of skillful gaming to be a facet of the right of freedom of speech and expression under Article 19(1)(a), the right to life and liberty under Article 21, as well as a protected business activity under Article 19(1)(g). This recognition by the Court is transformational, but, at the same time, concerns have been raised by various mental health professionals and other civic society actors about gaming addiction and other negative implications of gaming. The Court too, recognizing the same, said that online gaming needs to be regulated. Given the transformational impact and the concerns raised, it becomes necessary to engage in a holistic discussion on online gaming, keeping in mind its multifaceted aspects.

 

To that end, the Law and Technology Society, NLSIU, along with the Sports Committee, Indian Journal of Law and Technology, LawNk, and the Sports Law and Policy Centre ('SLPC') hosted a Gaming Law Conference, comprising of three panel discussions on a) The Karnataka High Court's Judgement b) Gaming Addiction and Policy Response, and c) Careers in Gaming Law. The panel discussions were held on 30th April 2022 at the NLSIU Campus.

 

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Executive Summary

(Click here to view the full conference report)

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PANEL 1: DECODING THE KARNATAKA HIGH COURT’S GAMING JUDGEMENT

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  1. Mr. Pradeep Nayak (Managing Partner, Keystone Partners, Counsel for lead petitioner, the All India Gaming Federation in the case)
  2. Ms. Shivani Jha (Director, eSports Players Welfare Association)
  3. Mr. Abhinav Shrivastava (Partner, LawNK)
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  • The judgement of the Karnataka High Court in All India Gaming Federation v. State of Karnataka struck down the bar on skill-based games in Karnataka Police (Amendment) Bill, 2021. This ruling permitted online gaming in Karnataka on the condition that it be a game of skill, and not chance.

  • The judgement by Karnataka High Court was pertinent in reinforcing the distinction between games of skill and chance. It affirmed the application of the ‘predominance’ test, i.e., whether the game is predominantly a game of skill or chance, rather than the impractical view of categorizing them in a mutually exclusive manner. This can be empirically tested in a range of ways, including through juxtaposing the performance of a professional and a novice at a particular game. If the difference is large, then it is likelier to be a game of skill, while a small difference is indicative of a game of chance. While the determination of a game of skill or chance can be done judicially, it would be appropriate for the judiciary to refer to technical and expert advice on certain matters.

  • This judgement further included games of skill as protected under Article 19(1)(a). While prior jurisprudence had mentioned the distinction between games of skill and chance, the new addition of this judgement to that jurisprudence was imbuing constitutional protection to online gaming and e-sports. This not only provides safeguards, but also legitimizes online gaming as a sport in its own right, thereby sustaining the livelihood of many professionals. Therefore, merely because a sport is being conducted online should not give rise to the presumption that it is a game of chance. Online games should be presumed to be on a level pegging with offline gaming on the skill-chance distinction.

  • Furthermore, regulation of gaming and e-sports must keep in mind the existing safeguards against addiction and gambling as well as accommodate the extant self-regulation mechanisms. The government should avoid the perils of overregulation in a nascent industry and must be adequately flexible. Bodies such as the All India Gaming Federation (‘AIGF’) are suited to operate within the larger governmental regulatory frameworks and assist in the ‘on the ground technical regulation’

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PANEL 2: UNDERSTANDING GAMING ADDICTION AND POLICY RESPONS

 

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  1. Ms. Anna Chandy (Social Psychologist and Founder, Anna Chandy and Associates)

  2. Dr Vivek Benegal (Professor of Psychiatry, NIMHANS Bengaluru)

  3. Prof. Saurabh Bhattacharjee (Professor of Law, NLSIU Bengaluru)

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  • Addiction can be understood as a recurring kind of illness. It occurs due to long-lasting changes in the brain structure. Gaming addiction, though existing earlier as well, has assumed greater space in the discourse on addiction. It’s only now that we see gaming addiction as a sign of mental illness. It’s very similar to gambling in its behavioural psychology of addiction. Gaming addiction is quite prevalent with approximately 2 per cent of the adult population being addicted. There are various risk factors which make some people more vulnerable to gaming addiction than others. People with pre-existing addictions are more prone to gaming addiction. Also, greater accessibility to games increases the possibility of addiction. As such, there is a need to identify these vulnerable people, and frame targeted policies.

  • The response of Indian Courts regarding this issue has been an extension of gambling laws to gaming. For regulation in this area, criminalisation (or complete prohibition) cannot be the solution to a public health concern as it would, then, become an illegal and underground activity. Instead, India could benefit by drawing on foreign regulatory mechanisms like restrictions on time, selective controls, and diminishing rewards in the game as the time increases. Even behavioral warnings within the game that flag the instances of addiction could prove to be helpful. Although self-regulation within the gaming industry could go a long way in overcoming addiction, there is a need for a dialogue between the game developers and the regulators. Such a dialogue must look at the larger impact that games have including gender stereotyping, racial stereotyping, violence, etc.

  • As significant stakeholders, parents are responsible for monitoring their children. However, sometimes they may lack adequate information. Moreover, disciplinary measures by parents may not be the solution. Regarding the accountability of developers, tort law can be applied to attribute different liabilities to different stakeholders. The Consumer Protection Act, 2019 can also be looked into, especially for celebrity endorsements of games.

  • To conclude, the existing laws are under-inclusive and may not be effective to deal with the issues highlighted. Thus, before rushing into new legislation there is a need to understand all the needs and issues involved.

PANEL 3: CAREERS IN GAMING LAW

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  1. Mr. Dibyojyoti Mainak (Policy, Communications and Legal Head at Mobile Premier League)

  2. Ms. Sakina Retiwala (Counsel, Dream Sports Inc)

  3. Mr. Nandan Kamath (Founder and Principal Lawyer, LawNK)

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  • The emergence of Gaming Laws can be primarily attributed to the regulation of Gambling Activities, like the Public Gambling Act of 1867. However, the advent of technology has transformed the nature of this field into a multi-faceted, dynamic and international one, intersecting with multiple fields such as Constitutional Law, Contracts Law and Criminal Law. This dynamism and interconnection has raised challenges of regulation at the intersection of law, society and technology.

  • These challenges give rise to numerous opportunities for legal practitioners, especially given the nascent stage of the industry, ranging from in-house counselling for public policy and engagement, business and communications, and transactions to litigation and even teaching. The public policy space is particularly flourishing, given that there is no specific statute present across states, and entails engagement with multiple stakeholders from the industry to the government officials. However, the field of communications and transactions management is also growing, the former entailing management of public perception of the companies and gaming in general across different audiences and the latter involving working on contractual matters, commercial negotiations, cloud networking models, endorsements etc.

  • The challenge in front of those who wish to enter this field is moving away from a route of mere specialization in studies or fields, to be dynamic and open-minded, having the ability to wear ‘multiple hats’. Careers in Gaming Law are Careers in Innovation, involving oneself to immerse themselves in the nuances of technology, business and surrounding facets of this field to get a headway in understanding the requirements of the field. Although much of this is yet to present itself in universities and colleges at a rapid pace, knowledge of these nuances would give one an edge in the field.

About Law and Technology Society (L-Tech) : L-Tech is a student-run committee of the National Law School of India University, which works in association with IJLT for promoting the study of the interface of law and technology in India.  The committee may be reached here.

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