Introduction
The gaming industry in India is witnessing a strike growth with multiple companies engaging in content satisfying their creative exploration of art, media and technology. The advent of creative ideas and its exploration, calls for regulatory interventions by authorities to strike a balance among creative freedom, user experience, and societal concerns. This article dives into regulatory activities surrounding gaming content, exploring the issues related to censorship, age ratings and legal controversies.
Balancing censorship and freedom of expression
It is crucial to understand the intersection of censorship and the freedom of expression when the regulatory authorities exercise their powers. Technology has reduced multiple barriers related to entertainment. Through which, entertainment related to gaming has risen proportionately. In India, progress can be witnessed as certain competitions, preparations, etc. happens which multiplies the popularity of gaming. But along with its advancement, certain restrictions can come upon it. These restrictions can be put up by authorities or through already enacted legislations. The Constitution of India guarantees the citizens the right to freedom of speech and expression through, but it is not an absolute right, thus, comes certain restrictions along with it. These restrictions come under the ambit of reasonable restrictions on the right to free speech and expression and are outlined under the Constitution.
Art. 19(1)(a)1 of the Indian Constitution guarantees the right to free speech and expression, however it is subject to some limitations. Art. 19(2)2 of the Constitution sets reasonable restraints on free speech and expression, including the limitations listed here.
If expression through gaming, comes under reasonable restrictions under Art. 19(2), then censorship can be exercised. The Supreme Court attempted to review all previous rulings on the concept of 'reasonable restrictions' in the matter of Narendra Kumar v. Union of India3, and found that the term 'restriction' even extends to prohibiting something if such a thing meets the grounds specified in Art. 19(2).
Age ratings and content guidelines: A legal perspective
Age ratings and content guidelines are crucial self-reporting measures. The companies themselves provides the information related to the game and its content, making sure that the game is appropriate for a particular age group. These are important as they protect minors from exposure to inappropriate content. For instance, voluntary rating systems requiring video games to have a rating were the first step toward censorship in the United States.
This system is called the Entertainment Software Rating Board ("ESRB") with ratings ranging from E (Everyone) to M (Mature, above 17) and A.O (Adults Only). The International Age Rating Coalition ("IARC") is a significant development. It provides a globally streamlined age classification process for digital products while ensuring that users are given consistent access to established and trusted ratings. Additionally, content guidelines provide detailed information on the content being accessed.
Violence and explicit themes: Controversies
It is no utopian concept of violence and explicit themes in video games. But along with the prevalence of these themes, certain controversies get roped with it. Majority of the age groups accessing video games are young people4, while a significant number of them being teens. It is important to restrict access of violence, sexual or explicit themes to minors. The state has the responsibility under of the Constitution to take steps to ensure that innocent children are not abused or corrupted in any way. Moreover, the children are provided facilities to develop physical and mental faculties in a healthy manner and with dignity.
Video games containing such themes gets into limelight multiple times because of the nature of its content. In a research investigation by Dr Jeanne Funk duly published in the Journal of India Pediatrics, (taken from an article5) it was revealed that children found violent and high-stress games exciting especially among the children who are in age group of class 7th and 8th students, 29% were inclined towards sports games but with violent graphics and a mere 2% were interested in educational games. History has witnessed multiple controversies6 regarding the violent and explicit themes in video games. This includes Mortal Kombat, Grand Theft Auto, Postal, etc. Thus, it is important for authorities to consider such themes while exercising their powers of regulation.
Jurisdictional perspectives on game bans
Along with the reasonable restrictions on freedom of speech, many other legislations play a crucial role in regulating gaming content. According to Art. 397 (e) and (f) of the Constitution, actions must be taken to protect innocent children from abuse or corruption. Furthermore, children are given opportunities to develop their physical and mental abilities in a healthy and dignified manner. Furthermore, Sec. 2928 of the IPC criminalizes obscene publication, whether physical or digital. It defines obscenity as any work, that appeals to prurient curiosity with the consequence of corrupting the person's senses in relation to the matter contained in it. These laws are crucial as such can be invoked at the time the regulatory bodies exercise their powers.
Multiple states in India have implemented certain legislations which regulates online gaming. Some of these include The Sikkim online gaming act, 2008, Assam Game and Betting Act 1970, Nagaland Prohibition of Gaming and Promotion and Regulation of Online Games of Skill Rules 2016, Bombay Prevention of Gambling Act, 1887, etc. These laws play a good role in regulating the areas surrounding gaming in India, but they come with certain loopholes. To address these loopholes on national basis, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 was implemented which came with a recent 2023 amendment. These rules and regulations, imposed restrictions or bans on certain games which did not align with the laws outlined.
Legalities surrounding game modifications and user-generated content
Along with the game modifications (often referred to as "mods") and user-generated content ("UGC") comes certain legal concerns. It involves alterations or additions to original game's code or assets by users themselves. While, certain modifications might turn out to be certainly helpful while raising gaming experience and interaction, some might change the course of the game such as it becomes vulnerable to copyright infringements. It is crucial for developers to assert intellectual property rights over the original game content along with balancing the rights of the user to modify the original content. Widespread legal practices used by firms to prevent such activities are clear terms of use, licensing agreements and moderation practices. To allow creativity to thrive in mods and UGC, it is crucial to maintain legal boundaries.
A Case Study
India saw serious regulations levied upon a games in 2017. The most popular of them was Blue Whale. This game was more of challenges and tasks, series of them which made the players exercise certain life-threatening acts. The ultimate challenge of which included committing suicide. To address this, a suo moto cognizance was taken by the Madras High Court in the case of The Registrar (Judicial) vs The Secretary to Government9.
The Madras High Court had directed the Central and State Governments, as well as internet service providers (ISPs), to take action against the spreading of Blue Whale Challenge by blocking certain hidden links or shady websites associated with it. The court also issued multiple directives to ISPs regarding blocking access to the game. The Hon'ble Supreme Court of India concluded in Sneha Kalita v. Union of India10, a second case regarding the Blue Whale Challenge, that it was a national issue.
Conclusion
With the gaming industry in rise in India, consideration related to facets of every legal implication, surrounding it, has to be done. Regulatory affairs play a big role, as various interests and preventive measures have to be considered. These include complexities of creative expression, societal values, and the protection of users, particularly minors. Additionally, while exercising their powers, regulatory authorities should strike a balance between censorship and freedom of speech & expression. While multiple state laws have been implemented for the regulation, there still exist a need to address certain loopholes prevalent in them. To provide a fair and responsible environment for both creators and consumers, the regulatory framework must evolve.
Footnotes
1 The Constitution of India, Art. 19(1)(a).
2 The Constitution of India, Art. 19(2).
3 Narendra Kumar v. Union of India, 1960 AIR 430.
4 Tanushree Bashuroy, 'Share of online gamers in India as of April 2022, by age group' (statista, Oct 10 2023) https://www.statista.com/statistics/1118568/india-share-of-online-gamers-by-age/ accessed 20 March 2024.
5 Piya Bose, 'Censorship of Video Games' (legalservicesindia) https://www.legalservicesindia.com/articles/cenpb.htm accessed 20 March 2024.
6 'List of controversial video games' (Wikipedia) https://en.wikipedia.org/wiki/List_of_controversial_video_games accessed 20 March 2024.
7 The Constitution of India, Art. 39.
8 Indian Penal Code 1860, §292.
9 The Registrar (Judicial) vs The Secretary to Government, (2018) 1 CTC 506.
10 Sneha Kalita v. Union of India, (2018) 12 SCC 674.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.