Odishatv Bureau

New Delhi: A move to ban online gaming is gaining momentum in the southern states with Tamil Nadu joining Andhra Pradesh and Telangana and Karnataka also mulling a law banning online gaming.

Following the footsteps of Telangana and Andhra Pradesh, the state of Tamil Nadu has also amended its laws to restrict online gaming within its territory.

The Governor of Tamil Nadu promulgated the Tamil Nadu Gaming and Police Laws (Amendment) Ordinance 2020 on November 20, 2020 (Ref: Tamil Nadu Ordinance Number 11 of 2020) (Ordinance).

The Ordinance amends the Tamil Nadu Gaming Act, 1930 (TN Gaming Act) and extends its territorial scope to cover the entire state of Tamil Nadu. Gaming-related provisions of the Chennai City Police Act, 1888 and the Tamil Nadu District Police Act, 1859 are no more applicable in the State of Tamil Nadu.

According to Surbhi Kejriwal, Rishabh Bharadwaj and Abhishek Rao of Khaitan & Co, the Ordinance comes in the wake of the observations of the Madras High Court regarding the addictive nature of online games and its negative effect on the masses.

In D Siluvai Venance v State, the Madras High Court sought to address the negative effect of online gaming by resolving the regulatory void in the online and virtual gaming space.

Similarly, in Mohammed Rizvi v Union of India it has been brought to the notice of the Madras High Court that members of the public end up incurring debts in connection with online gambling activities and that there are instances of people dying by suicide when unable to repay these debts.

Given the number of deaths, the court indicated that the state government takes appropriate, adequate, and immediate measures, including bringing legislation, to prohibit or regulate online gambling. The Ordinance, as mentioned in its explanatory statement, is also promulgated in this backdrop.

However, Khaitan & Co authors noted that interestingly, the exemption of 'games of mere skill' has been retained in the TN Gaming Act. In fact, this exemption has been extended to the aforesaid prohibition on wagering or betting in cyberspace using computers, computer systems, computer networks, computer resources, any communication device, or any other instrument of gaming, by playing 'rummy, 'poker', or 'any other game'.

Unlike the case of Telangana and Andhra Pradesh, the Ordinance does not put a blanket ban on offering online games. Online games involving skill continue to be exempted from the application of the restrictions under the TN Gaming Act.

Having said that, while the Ordinance seeks to prohibit online real money games such as rummy and poker, the prohibition does not apply to games of mere skill.

Rummy and poker are permitted games under the prevailing legal framework. Supreme Court of India has held in State of Andhra Pradesh v K Satyanarayana (Ref: 1968 AIR 825) that rummy is a game of skill. Similarly, poker is permitted in West Bengal, Sikkim, Nagaland, Goa, and Daman and Diu (by legislation) and Karnataka (by judicial precedent).

"This results in further confusion in an industry already marred by legal multiplicity, confusions, and uncertainties. We hope that this confusion will be cleared by the Tamil Nadu Legislative Assembly once it is in session and online games involving skill will be permitted. The Assembly is required to approve the Ordinance, with or without changes, within six weeks of reassembling pursuant to Article 213 of the Constitution of India, failing which the Ordinance will cease to be in force", the authors said.

The Advertising and Standards Council of India (ASCI) has also introduced guidelines to make real money gaming advertising safer and more responsible.

The authors said one of the frequent complaints against real money gaming (RMG) activities is the way they are advertised to the common public. The advertisements occasionally create a perception that such games may become a source of income, livelihood, or profits as opposed to being a source of entertainment. This creates behavioural issues among the users of online gaming portals.

Against this backdrop, the Advertising and Standards Council of India (ASCI) has on 24 November 2020 published guidelines around advertisements pertaining to RMG. These guidelines will be effective from December 15, 2020.