Asheeta RegidiMar 20, 2019 16:47:55 IST
The ban of the PUBG mobile game in Gujarat and the arrests that followed have triggered a national conversation around regulating gaming in India. Gaming regulation isn’t something that has been actively considered in India, with the exception of laws on gambling and betting. Other laws deal with factors like content regulation and intellectual property violation. None of these, however, could apply to PUBG, since the issue is not with its content, but the extreme addiction it triggers.
The lack of appropriate laws is leading to orders such as the ban of PUBG under Section 144 of the Criminal Procedure Code, 1973, the same provision used for internet shutdowns. The ban, in fact, is doing little to actually solve the problem, unlike say, a temporary block of the game’s servers or a restriction of access to it. To the contrary, the negative attention being received by PUBG is only adding to its popularity, triggering greater curiosity as to what makes it so objectionable. Proper regulatory measures need to be explored and implemented, instead of resorting to measures of this nature.
Regulating content in games
The one area where India has a number of regulations is in relation to content. Examples are the Indian Penal Code, 1860, the Information Technology Act, 2000, the Protection of Children from Sexual Offences Act, 2012 and the Indecent Representation of Women (Prohibition) Act, 1986, which prohibit obscene or sexually explicit content, and the Young Persons (Harmful Publications) Act, 1956, which prohibits violent content. The last law applies only to publications in the nature of ‘books, magazines, pamphlets, leaflets, newspapers, and the like’, indicating that it may not apply to content in the nature of video games.
A key factor is that these laws only prohibit the publication and distribution of such content. With the exception of such content in relation to children, the creation and consumption of such content is not prohibited. It is due to this that a number of games have failed to release officially in India, such as Dragon Age: Inquisition, for fears of falling afoul of Indian obscenity laws, or Fallout 3 and Fallout: New Vegas, for fear of offending Indian sensibilities because the game allowed the slaughtering of mutated cows called ‘Brahmins’, etc. Unofficially, however, these games can be downloaded and played in India, though sharing them further will again violate the law.
Are content laws effective?
The complete ban of certain types of content can be justified, such as games involving sexual assault (like Rape Day), torture, harm to animals, racial violence, etc. For these, it needs to be examined if creation and even consumption should be made punishable.
For most other types, however, the content will fall into the regulatory grey zone. Clearly, in relation to such games, the main restriction of content laws is with the official release or sale of such games. An immediate question that arises is as to how effective such laws are in relation to content that is in the grey area. A key issue is of choice, and of the difference between an impressionable person and a more mature one. The impact, for instance, will be drastically different for a child and a seasoned gamer.
In the case of PUBG, the problem is not with its content alone, which is much like other video games of a similar nature. The factors contributing to the addictiveness of PUBG include that it has come at a time when smartphones are ubiquitous and data packs have become affordable, not to mention the fact that the game itself is easily accessible on playstores and is available free of charge. Each of these factors add to the wide reach and addiction the game is triggering.
Should there be a rating system?
This is perhaps the reason why gaming regulators abroad have turned to rating systems to deal with the content in games. Examples are international rating agencies like Pan European Game Information (PEGI) and its American counterpart, the Entertainment Software Rating Board (ESRB), which assess games based on factors like age ( 3,7, 12, 16 and 18) and other criteria (violence, language, fear, drugs, etc.). A game that contains simulations of betting, for instance, receives a PEGI 12 rating.
These ratings would serve, in the least, as an initial benchmark for the accessibility of a game in India. PUBG, for instance, has a 16+ rating, which could have helped restrict the reach of the game in India. However, this was prevented by the absence of a regulatory system or identified technical solutions to implement such ratings.
Can international ratings be relied on?
A concern here is that international ratings will not always work for a specific country. One can also consider the removal of quest involving detonating a nuclear bomb from Fallout 3 before its release in Japan, the ban of Battlefield 3 in Iran due to its depiction of an assault on Tehran, or India’s objections to Overwatch and Smite due to their depiction of Indian goddesses. Even the PEGI and ESRB ratings for a given game tend to vary.
One can also recall one of the objections more recently to Pokemon Go, against which a PIL had been filed in the Gujarat High Court, arguing that it hurt religious sentiments by showing virtual eggs in places of worship. It is unclear how a ban on such a ground is justifiable, given that the makers could not possibly have predicted this. Luckily, the game was not banned on these grounds, though soon other issues like trespass and leading players into unsafe areas arose.
A key form of gaming content that is dealt with under Indian laws is gambling. Numerous laws in India prohibit gambling, which can be defined as the ‘payment of a price for a chance to win a prize’ ( Supreme Court in Dr. K.R. Lakshmanan vs. State of Tamil Nadu). However, when the bets are placed on games that are preponderantly skill-based, as opposed to entirely luck-based, then this is permitted under the law (say betting on rummy). The Sikkim Online Gaming (Regulation ) Act,2008, for instance, would directly regulate a game that, say, allows betting on virtual sports.
Game of War’s casino and lootboxes
Even a video game that contains an element of gambling, will be within the ambit of these laws. An example is ‘Game of War’, which contained a casino in the game, on account of which the Belgium Gaming Commission had intervened. Notably, this was despite the fact that the gambling was with virtual gold, and not real money, since the virtual gold itself had to be bought through in-app purchases ($100 could get 20,000 gold pieces). A similar stance is taken in Indian laws, such as the Nagaland Prohibition of Gambling and Promotion and Regulation of Online Games of Skill Act, 2015, which specifically includes the staking of either money or virtual currency as a ‘wager’, which is in the ambit of ‘gambling’.
The example of loot boxes in Star Wars Battlefront II can also be considered here, which were ruled to amount to gambling and were banned in several countries including Belgium, China, Japan and Australia. The Belgium Gaming Commission, for instance, issued a number of directions to deal with the issue, such as disclosure of the probability of winning, and display of a symbol to indicate gambling in the game.
The addiction triggered by lootboxes
The underlying factor for the prohibition of gambling under the law is due to the addiction it triggers. Looking at the Belgium Gaming Commission’s examination of loot boxes (based on a translated version of an official report) , this was the key factor why these were ruled to be gambling. The report took into account factors like:
- the use of behavioral monitoring to find out the in-game object the player was most interested in, and to trigger his purchase of it, say by pitting him against a more experienced player who already had the object;
- creating an illusion that the game was skill based, such as the computer making corrections to a player’s play so he feels that he is good at the game;
- requiring a favorite character (say a celebrity) to be purchasable only through a number of loot boxes, thus pushing players to obtain more loot boxes;
- the impossibility of seeing what exactly is inside a loot box ( use of random number generators), which makes the actual outcome of obtaining a loot box random; etc.
Instant similarities can be seen with the techniques used to trigger addiction, such as the randomness of the reward from a casino slot machine, or the creating of an initial feeling of success to manipulate a player into playing more, and so on.
Regulating digital addiction
Looking at existing laws in India which apply to gambling, while the underlying reason for enacting the law is the addiction, the laws themselves apply only when there is an element of placing a bet or wager. In the absence of this, the law will not apply. The actual factors leading to addiction, or even extensive research into making the game addictive (as was done with loot boxes) are not relevant under these laws. Thus, even for PUBG, even if the game was designed to be addictive, in the absence of the factors of placing bets or waging money, this cannot be dealt with under gambling laws.
For that matter, there are several activities that are equally addictive and are unaddressed, be it social media, which is designed extensively to be addictive, a game like Candy Crush that is equally addictive; cigarettes and the like; or even television sitcoms. Laws on addiction, whether in India or around the world, normally deal with addiction to chemical substances, and not digital addiction. This is a big issue today, but there is little in terms of regulation to address it.
Regulating games that target children
Another key factor will be with addressing games that target children, which will need stricter standards. For instance, a concern of the Belgium Commission with the Game of War was that the game targeted underage players who were as young as nine, thus triggering gambling addictions in children. A report, for instance, discusses a Belgian teen who spent $46,000 for in-app purchases in the game. The Belgian teen here, for instance, is said to have not known that he was spending real money.
Looking at a regulatory system for India
For a solution, India needs to explore a regulatory system for dealing with gaming, keeping all of factors in mind. Having a self-regulatory system, the validity of international ratings, dealing with otherwise lawful games that trigger violations (Pokemon Go triggering trespass), games triggering addiction like PUBG, etc., need to be considered. It also needs to be considered if only games that meet a certain threshold should be regulated, like say PUBG which is causing issues. Lastly, special standards for children, restricting access to them, and finding technical solutions to dealing with the issue will also have to form a part of the law.
The PUBG issue makes it clear that moving to the digital era creates new problems, but older legislations cannot always deal with the issue. Digital addiction, further, is a major issue that needs to be addressed. Clear-cut legislations on these issues will not only provide adequate solutions when an issue like PUBG arises, it will also provide proper grounds for challenging a game (as with Pokemon Go) and will prevent steps like directing the arrest of persons for simply playing a game (as with PUBG).
The author is a lawyer specializing in technology, privacy, and cyber laws.
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