By Anuradha Gandhi and Rachita Thakur
Introduction
In a popular online game, there were 3 players playing from one team, there were 2 male and 1 female. The game was exciting and entertaining for all the 3 players, till the female revealed her gender identity. Then a spate of compliments with sexual connotations ensued, followed by requests of e-dates. On her refusal, verbal abuse along with sexists’ slurs followed and continued till she finally dropped out.
In the recent news articles in the Times of India, Jordan Belmaire, an avatar was groped while waiting for next attack during the game, shared a gamer on her experience while playing a virtual reality game ‘QuixVR’.1
Miranda Pakozdi, a gamer experienced abuse not only from spectators but also from her coach. During an online streaming, her coach instead of filming the game focused the camera on her breasts and buttocks and made lewd comments. In her final act,2 had her avatar killed, to protest against such act echoing the virtual form of #me too movement called the e-too movement.
As per a recent statistical study, the growing popularity of online games had provided another avenue for sexual harassment, 20% of female gamers have experienced sexual harassment from male or other gamers in the form of objectifying comments or death and rape threats.3
The format of many online games is such that it allows digital avatars to interact with each other in a manner similar to the physical world to the extent. The development in technology has led to magnification of the horizon of online games in a manner where a ‘touch’ can transcend the physical world and can be felt in the virtual world just as it would in the physical world. This very feature, itself, has the capacity to expose the online gamers, especially women gamers, to sexual harassment. With the incognito mode and in absence of specific regulation, it gives a safe haven to harassers against the vulnerable population like women and LGBTQ. To read more about the sexual harassment in Metaverse, refer to: https://ssrana.in/articles/exploring-sexual-harassment-in-metaverse/.
Online Gaming Intermediaries
With growing online gaming base in India, the number of companies that provide online games have also increased over time and are further consistently growing. The companies and platforms that sell online games to the players are known as online gaming intermediaries, more specifically defined under the recent amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter referred to as the “Rules”).
The Information Technology Act, 20004 defines the term ‘Intermediary’ as “any person who on behalf of another person receives, stores or transmits an electronic record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”.5
The definition of intermediaries broadly defines an ‘Intermediary’ but does not specifically define an online gaming intermediary. Given the need to regulate the online gaming sector and accommodate for the same under the law, Central Government made an amendment to the Rules (hereinafter referred to as “Amended Rules”) on April 06, 2023,6 to include online games under the Rules. The Amended Rules define an ‘online gaming intermediary’ as intermediary that offers one or more than one online game. The Amended Rules, further, defines permissible online game as a permissible online real money game or any other online game that is not an online real money game.7
The Amended Rules, thus by bring online gamines platforms and companies under the ambit of intermediary impose certain obligations and responsibilities on them. To specify, Part II, Section 3(1) (b) of the Amended Rules states that an intermediary shall make reasonable efforts by itself and to prevent users of its computer resources from hosting, displaying, uploading, publishing, etc. such information that is obscene, pornographic, pedophilic or harassing on basis of gender and information which violates any law for the time being in force.8
Further, Part II, Section 3(2) (b) of the Amended Rules entrusts the intermediaries with the responsibility of removing any material that depicts nudity, either partial or in full or depicts and individual in sexual act or conduct.9
Though, with the Amended Rules, online gaming companies have been made liable for their acts that are violative of any provision contained in the IT Act, however, the Amended Rules are directive in nature. The Amended Rules act as an umbrella to cover the ungoverned online gaming sector of India.
The Amended Rules and sexual harassment in online games
Gaming today is not limited to entertainment, instead has incredibly tapped on its power to generate revenue and benefit the economy thereby providing the boost to the GDP. As India projects to become a 5 trillion economy by 2025, the Indian online gaming sector is also ready to expand and grow into One trillion-dollar Digital economy by 2025-26.
The Amended Rules do take a step ahead in creating a safe online gaming environment for all ‘Digital Nagriks’ 10 along with establishing accountability of online gaming industry, however, online gaming sector is still at a nascent stage wherein today only basic concerns are taken into consideration. With the existing landscape and irregularities emerging in the online gaming sector, the Rules have been amended to address:
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(a) user harms in the nature of addiction-related concerns among children and adults, especially in terms of financial losses incurred by adult users due to such addiction;
(b) content-related concerns in terms of depiction of violent or inappropriate content, with absence of concrete measures to prevent children from accessing such content or real money games;
(c) ads of offshore gambling and betting websites targeting Indian users;
(d) lack of safeguards to secure users’ money and money laundering-related concerns in the absence of any strict KYC mechanism.
The Amended Rules though acknowledge the perspective of regulating the content published online on gaming platforms however, do not accommodate for sexual harassment per se that already exists on such platforms.
Interface between the POSH Act and Online gaming spaces
Applicability of the POSH Act on the Online Gaming intermediaries- Establishing liabilities
As the Amended Rules now have been notified to specifically cover within its ambit the online games including the real money games, it is important to understand the intensity of liability of the intermediaries. Though the Amended Rules talk about setting up of Self-regulatory Body to enforce the IT Act along with Rules, regulate the activities of online gaming entities and ensuring compliance with the law. What must be noted here is that if the online or virtual world is just an extension of the physical world, then the laws operating under the physical world should be extended to the virtual world.
Furthermore, given the revenue generation power of the online games, it is interesting to understand the applicability of the provision of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as the “POSH Act”) on the online gaming sector and making gaming intermediaries liable for publishing content and developing games that are sexually explicit including the instances of sexual harassment that may result on the gaming platforms.
Online Gaming Intermediaries as Employers under the POSH Act
The POSH Act defines the term ‘employer’ as a person responsible for management, supervision and control of the workplace and a person discharging contractual obligations with respect to his or her employees.12
Under the POSH Act Section 2 (o) (iv), employers includes sports federations as well in regards with sports institute, stadium etc.13
In view of the gaming arena, gaming companies exercise control, supervision and management for the games developed and sponsored by them. They have discretion as to the content that is allowed to publish on the platform, the features of the game and also have an upper hand over the developers of the game.
Online Gaming Platforms as Workplaces
‘Workplace’ under the POSH Act is defined to include any private sector organization carrying on commercial or financial activities, any sports institute etc. 14 In case of Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University15 , the Hon’ble High Court of Bombay observed that definition of workplace is an inclusive and non-exhaustive definition. With the paradigm shift in the mode of working during the pandemic, workplace cannot be restricted to physical spaces of work. In the case of Sanjeev Mishra v. Disciplinary Authority and General Manager, Bank (2021)16 , it was held that virtual workplaces are included within the ambit of ‘workplace’ under the POSH Act.
Now considering that new modes of work have emerged, the concept of physical workspaces has been extended to virtual workspaces as well. Online games, too have moved ahead from being the source of entertainment to many to being a valid source of income for a lot today. According to a recent study, online gaming has already become a source of income for around 83% of gamers in India.17 Since online games can create wealth and generate income they are eligible to be brought within the purview of the definition of ‘workplace’ under the POSH Act.
Gamers as employees?
The POSH Act has a wider ambit and allows an employee to file a complaint of sexual harassment where ‘ employee’ means “a person employed at a workplace for any work on regular, temporary, ad hoc or daily wage basis, either directly or through an agent, including a contractor, with or, without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, whether the terms of employment are express or implied and includes a co-worker, a contract worker, probationer, trainee, apprentice or called by any other such name”.
Therefore, in the context of an online game, online gaming companies are employers; gaming platforms are workplaces and employees of the gaming company are employees under the definition of POSH Act. Gamers who access the gaming services on the platform for a short duration can be brought within the purview of ‘visitors’ of the platform. Therefore, in case of any instance of sexual harassment that may arise on the platform, the same would be actionable under the POSH Act.
Filing of complaints of sexual harassment on online gaming platforms?
To file a complaint under the POSH Act, what is important is the occurrence of an act to have a sexual connotation and the same must have occurred in relation to the workplace.
In any particular situation, if the aforementioned elements are satisfied, the online gaming intermediaries become liable under the POSH Act. Further, the intermediaries shall also be liable to comply with the other provisions of the POSH Act.
Conclusion
Online games in India, though growing at a commendable pace, still operate in the grey area and there appears to be vacuum with respect to establishing strict liabilities on the part of online gaming intermediaries. Apart from establishing a regulatory mechanism for the gaming sector what is required is implementation of regulatory mechanisms in so as to make these gaming intermediaries liable for cases of sexual harassment that occur on the platforms.
However, there are recent steps and developments that have been made by the Government to fill in the existing gaps and loop holes in the operational structure of online gaming intermediaries. It must be understood that the intermediaries must take accountability of their responsibility to create safe platforms for people to interact. The read more about the liability of intermediaries refer to: https://ssrana.in/articles/liability-online-aggregators-posh-act-2013/ .
[1] https://timesofindia.indiatimes.com/home/sunday-times/molesters-prey-on-women-gamers/articleshow/55271815.cms
[2] https://arizonastatelawjournal.org/2020/05/13/the-e-too-movement-fighting-back-against-sexual-harassment-in-electronic-sports/
[3] https://www.ivint.org/gaming-hidden-sexism-and-harassment/
[4] Section 2 (1)(w) of the Information Technology Act, 2000.
[5] Section 2(w) of the Information Technology Act, 2000
[6] https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1914358
[7] https://www.meity.gov.in/content/information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021
[8] https://www.meity.gov.in/content/information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021
[9] https://www.meity.gov.in/content/information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021
[10] Refer to: https://www.pib.gov.in/PressReleasePage.aspx?PRID=1918383
[11] https://www.pib.gov.in/PressReleasePage.aspx?PRID=1918383
[12] Section 2(g) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)Act, 2013
[13] https://lddashboard.legislative.gov.in/actsofparliamentfromtheyear/sexual-harassment-women-workplace-prevention-prohibition-and-redressal
[14] https://lddashboard.legislative.gov.in/actsofparliamentfromtheyear/sexual-harassment-women-workplace-prevention-prohibition-and-redressal
[15] Writ Petition Nos. 3449, 3450 & 3451 of 2013
[16] https://indiankanoon.org/doc/49655315/
[17] https://thenfapost.com/online-gaming-emerging-as-viable-source-of-income-in-india-shows-study/#:~:text=Online%20Gaming%20Emerging%20As%20Viable%20Source%20Of%20Income%20In%20India%2C%20Shows%20Study,-By&text=New%20Delhi%2C%20NFAPost%3A%20According%20to,a%20hobby%20than%20a%20career