Changes to India’s gambling regulation 2023

General characteristics of gambling.

On April 06, 2023 “The Information Technology Rules” (hereinafter referred to as ” Rules”) came into force, concerning the regulation of online gambling services in India. 

The relevant law came into force upon its publication, but until three months from the date when the Ministry of Electronics and Information Technology (“MeitY”) approves at least three Self-Regulatory Bodies (“SRBs”), or the Central Government, by notice in the Official Gazette, imposes another deadline, operators are not required to comply with the said rules.

Since neither the SRBs have been approved nor the notice has been published, the provisions of the Rules described below are currently declarative.

Turning directly to the consideration of these Rules, let’s start with the concept of online gaming, hence, “online gaming” means a game that is offered on the Internet and is available to the user through a computer resource or intermediary.

Basically, the Rules refer to permitted online-games, which are divided into two categories, such as: 

• Permitted online real money gambling (hereinafter referred to as “PORMG”) and
• Any other online game that is not a real money online game; 

(Online games that are not considered permitted risk being blocked in India).

Special rules are only for online real-money games.  There are no special rules for other online games, but MeitY has the right to apply certain obligations under the Rules to other online games as well, if MeitY deems it necessary.

Real Money Online Game acquires the status of “PORMG” after passing the self-regulatory body verification. In order to pass the relevant inspection, the online real money game must comply with the following:

• does not conflict with the sovereignty and integrity of India, the security of the state, friendly relations with foreign countries or public order;
• does not cause harm to users, including self-harm and psychological harm;
• is consistent with measures to protect children;
• complies with measures to protect users from the risk of gambling addiction, financial loss and financial fraud;

In addition, in order to receive PORMG status, games must meet the following criteria:

• “Online real money game does not involve wagering on any outcome”.

The rule in question is rather imprecise, since there is no clarity on what games are considered to be wagers. The generally accepted interpretation of the word “wagering” is “to risk money on an unknown outcome of an event in the hope or expectation of winning more money than you have risked”. In this aspect, we should also refer to jurisprudence, which, among other things, distinguishes the following games, which should be considered as “wagering on any outcome”:

– Betting on horse racing ;

– Fantasy sports games .

• The games do not “violate any applicable law”.

Additionally, it can be noted that SRBs are empowered at their sole discretion to allow the release of online real money games immediately for a period of up to three months based on the initial information provided by applicants, pending a more detailed investigation. After completing the inspection within the 3-month period, SRBs will either recognize the game as PORMG or notify the applicant in writing with justification that the online games do not meet the stipulated criteria.

In summary, it is necessary to note that state laws in the aspect of gambling regulation take precedence. For example, since Telangana and Andhra Pradesh, even offering gambling games are considered a prohibited gambling activity, meaning that once a game acquires PORMG status, the game will still be prohibited in these states.

Therefore, even operators who register their games in SRBs can get an order to suspend such games from the state government if the games are offered in those states and are prohibited under local law.

Obligations of gambling operators

The Act establishes a number of obligations imposed on the “online gaming intermediary”, i.e. the operator who provides users with access to one or more online games. 

The relevant obligations are as follows:

• the operator shall publish rules and regulations and privacy policy on his website/app, in a visible place;
• the operator must inform its users periodically, at least once a year, that in case of non-compliance with the rules and regulations, privacy policy or user agreement the operator has the right to immediately terminate users’ access to the resource or to remove the illegally published content;
• the operator shall inform its users of any changes to the rules and regulations, privacy policy or user agreement as soon as possible, but no later than twenty-four hours after such change is made;
• the operator shall provide the information/assistance as soon as possible, but no later than twenty-four hours after receipt of an order from the state cybersecurity authority to provide such information/assistance, when the order is in writing and clearly states the purpose of the information or assistance requested;
• in the event of a legal proceeding, investigation, the operator shall keep evidence of the potential breach;

• the operator shall take all reasonable steps to protect its computer resource and the information contained therein by following reasonable security practices and procedures as set forth in the Information Technology (Reasonable Security Practices, Procedures and Personal Information) Regulations, 2011; 
• if the operator collects information from a user to register with the resource, it must retain that information for one hundred eighty days after any cancellation or revocation of his or her registration;
• the operator must publish in a conspicuous place on the website/application the name of the officer responsible for handling complaints and his contact information, and the mechanism by which the user or victim can file a complaint about a violation of the provisions. Such a complaint must be acknowledged within 24 hours and resolved within fifteen days of receipt. If the complaint involves the disclosure of private information, depicts a person in a sexual nature or is of a parody nature – shall take all reasonable and practicable steps to remove or disable access to such content within twenty-four hours of receipt of the complaint;
• the operator must appoint a Chief Compliance Officer, who is responsible for ensuring compliance with the Act and the Rules made thereunder, and is responsible in any legal proceedings relating to information provided or posted by such operator, except to the extent that the person is relieved of such responsibility;

Explanation:

 “Chief Compliance Officer” means key management personnel or other senior employee who is a resident of India; 

• the operator shall designate a contact person for round-the-clock coordination with law enforcement agencies and officials to ensure compliance with their orders or requests made under the provisions of the Act or the Rules made thereunder;

Explanation:

“Contact Person” means an employee of the operator who is a resident of India;

• the operator must designate a Resident Grievance Officer;

Explanation: 

“Resident Grievance Officer” means an employee of the operator who is resident in India; 

• the operator shall publish a periodic compliance report on a monthly basis with details of complaints received and actions taken;

• the operator shall implement an appropriate mechanism for receiving complaints which allows the complainant to track the status of such complaint or complaints by providing a unique number for each complaint;

• the operator shall enable users to voluntarily verify their accounts through any appropriate mechanism, including active Indian mobile number of such users, and if any user voluntarily verifies their account, such user shall be provided with a visible and visible verification mark which shall be visible for all users of the service, provided that the information obtained for the purpose of verification in accordance with this sub-rule cannot be used for any other purpose, unless the user has expressly consented to such use;

• the operator must place on the authorized online games for money a visible marking of the verification by the online gambling SRB;
• the operator must provide the following information about each online game offered, viz:

– policy for withdrawal or return of the deposit made for the purpose of receiving the winnings, the method of determination and distribution of such winnings, as well as commissions and other fees payable by the user; 

–  “know your customer” procedure used to verify the identity of the users of such online game; 

– measures taken to protect the deposit made by the user for such game;

• before accepting any deposit from any user, the operator shall identify such user and verify his identity in accordance with the procedures of the Reserve Bank of India;
• the operator must not itself carry out financing by credit or allow third parties to offer financing for the purpose of participating in such a game on the Internet;
• the operator must publish a clear and brief statement informing publishers that they must provide details of their accounts to the Ministry as may be required under Rule 18 (Rule 18 provides that a publisher of news content operating within India must notify the Ministry of details of its organization, such information must be provided within thirty days of the publication of these rules, or if such publisher begins its operations in the territory of India);
• the operator must have a physical contact address in India published on its website/application.