India Gambling — Distribution and platforms: Can we ship through apps and platforms?

The distribution and availability of online games in India should now be governed by the Online Gaming Act in tandem with the IT Act and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Rules”). Under the Online Gaming Act, the offering, operation or facilitation of online money games is prohibited, irrespective of whether such games involve skill, chance or both. The prohibition also extends to advertisements promoting online money games and the facilitation of financial transactions towards online money gaming services. These restrictions apply to online money gaming services offered in India, including services offered by offshore operators. Accordingly, websites, mobile applications and other digital platforms may not lawfully be used to offer prohibited online money games to users in India. Under Section 79 of the IT Act, intermediaries, including platforms that host, transmit or provide access to third-party content, may avail themselves of conditional protection from liability for third-party information hosted or made available through their services. Such protection is subject to compliance with prescribed due diligence requirements and should not extend to intermediaries that actively participate in, aid, abet or induce unlawful activities, or fail to comply with applicable obligations to remove or disable access to unlawful content. Accordingly, app stores, hosting providers, gaming aggregators and other distribution platforms may be subject to different obligations depending on their role in making online games available and the degree of control exercised over the relevant services. The Intermediary Rules prescribe due diligence requirements for intermediaries, including publication of user agreements, privacy policies and platform rules, restrictions on unlawful content, grievance redressal mechanisms, compliance with valid takedown orders and cooperation with authorised government agencies. Intermediaries facilitating the distribution of online games must assess their obligations under these rules, particularly where games or related advertisements contravene the Online Gaming Act or other applicable laws. Further, as discussed above, under the Online Gaming Act, the Central Government is empowered to direct the blocking of access to information generated, transmitted, received or hosted through computer resources in relation to prohibited online money gaming services, in accordance with the prescribed procedure. Accordingly, access to prohibited gaming websites, applications and related online services may be restricted through applicable blocking mechanisms. Pursuant to the Advisory, entities whose services or platforms may be used to offer, host, distribute or promote online money games, including app stores, cloud service providers, telecom and internet service providers, social media intermediaries, OTT platforms, advertising agencies and financial intermediaries, have been directed to review their internal policies and suspend activities contravening the Online Gaming Act. This includes disabling or refraining from hosting prohibited online money gaming applications, facilitating payments or authorising funds towards such games, and publishing or permitting advertisements promoting such games. The advisory further calls upon such entities to implement appropriate automated or manual compliance systems, procedures, checks and safeguards, having regard to the nature of their business.