The Punjab and Haryana High Court, by an order dated December 09, 2019, directed the Ministry of Electronics and Information Technology (“MEITY”) to decide on the banning of the online game, PUBG Mobile, while disposing a petition filed by a lawyer, Mr. H. C. Arora (“Petitioner”) seeking a ban on this game in Chandigarh.

The Petitioner claimed that (a) PUBG is an addictive game which had resulted in students losing interest in their studies, (b) PUBG is akin to drugs and stated that the game may destroy the young generation of India, and (c) the game is violent in nature and increases physical aggression in players.

PUBG: The phenomenon

PUBG is a survivor game, wherein players can participate either individually or in a team of 2 (for the duo games) and 4 (for the squad games). A total of 100 players are dropped off on a map, where the players can use vehicles, guns, and grenades to attack and kill others on the map, and whoever survives till the end, wins. Simultaneously, a “blue zone” keeps shrinking the area of the map and causes health damage to the players who are in this zone. Players must keep moving into the safe zone i.e., the area not covered by the “blue zone” in order to survive.

Currently PUBG is one of the most popular games in the world, both at an amateur and professional level. PUBG keeps organizing different competitions throughout the year giving away huge cash prizes. As per reports, the expected cumulative prize pool for PUBG tournaments in 2020 is predicted to be over USD 5 Million. Not only do the players play the game professionally but some of them also stream their gameplay on different platforms like Youtube and RheoTV for others to follow and learn. Recently, PUBG Mobile came up with a web series in India named “PUBG: Dosti ka Naya Maidan” showcasing different friendship stories via PUBG. Each episode of the web series has garnered at least 3 million views on YouTube, which just goes to show the popularity of the game in this country.

Background to the Petitions in the courts

Terms like violence, addiction and aggression have been used to describe PUBG in the past as well. In March 2019, a public interest litigation was filed in the Bombay High Court seeking a ban on PUBG for these reasons. In that case too, the Bombay High Court had sought advice from the MEITY, to which the MEITY had replied that it would be technically difficult for it to ban the game from all the available sources, unless it is done so by the creator or the parent company owning the game. With this reply, the matter was set aside by the Bombay High Court without any decision on banning the game.

In March 2019, PUBG was banned in a few cities of Gujarat pursuant to orders issued by the local police. The local police issued these orders for maintaining law and order and several arrests were also made for violation of these orders. However, since the ban was for limited period, it was lifted in April 2019 and all the arrested players were released.

Arguments to support a ban on PUBG

In both the petitions filed against PUBG, the arguments made by the petitioners were based on morality and lesser on the basis of violation of legal provisions. The petitioners claimed that the game is addictive and inculcates violence in the children who play the game. They also argued that these child players become aggressive after playing the game and that has resulted in several accidents cited in the last year.

Author’s Take

As mentioned above, the Punjab and Haryana High Court had disposed the petition by directing the MEITY to take a decision regarding a ban on PUBG. However, with this latest order, the courts appear to have missed another chance to determine what is “undesirable” in the context of online games. This petition presented a chance for a court to decide what parameters are relevant and can be taken into account before judging a game is worthy of a ban. In this instance, the focus of arguments in support of a ban are that the game is addictive and promotes violence/aggression amongst its players (mostly teenage children), and such arguments are not supported by violations of a law of the land or commission of an offence. In short, these are moral, ethical and cultural arguments.

It will be interesting to see how MEITY responds to this order, especially in light of the fact that in August 2019, MEITY had already voiced its limitation in banning the game in the Bombay High Court petition. Even if the current stance taken by MEITY is that it faces technological limitation in banning the game, MEITY should be required to come up with detailed assessment of risks involved in playing PUBG Mobile in comparison with the interests of professional players or streamers. Once MEITY is convinced that the said game is dangerous for the youth, it may decide to ban the game by requiring the creators of the game or the parent company owning the game to remove it from India region, as long as there is a well-reasoned explanation for the ban.

If MEITY were to proceed to start banning PUBG Mobile (to the extent it can), it is quite likely that such bans may be challenged in the Supreme Court, where these questions of accepting moral, ethical and cultural arguments can be the basis for a legal judgment and executive action.

To take a pause here and to review these arguments made in the petitions.

• Addiction: The fact that PUBG is addictive, goes on to show that it is a well- designed game which keeps the players interested for a longer period. Based on online published data, PUBG Mobile was ranked 2nd on the list of Top 10 games by number of downloads worldwide. The term addiction is mostly used in a negative sense and the fact that the petitioner compared PUBG with drugs would mean that he (and some others) consider it an illegal game, which is a personal opinion.

In my view, addiction (in the sense that the game is immensely popular and is able to retain its players interest) by itself, cannot be a ground to ban a game. There are numerous mobile games which attract a lot of people. The audience or players, in this matter, will only be addicted to a game if the game is of excellent quality and entertains them through and through. If addictiveness is considered to be the reason to ban a game, then there would be no incentive for a game developer to develop good games.

The legality of games in India is not judged based on its addictiveness but on the fact whether the game violates a well-established legal principle – is this a game of skill or a game of chance? The gameplay and result in PUBG are predominantly dependent on how the player performs and engages other players and at the same time surviving till the end, which, in my opinion, makes it a game of skill, which is legal.

• Violence and Aggression: The other major argument against PUBG is that it is violent and enhances aggression in its Multiple studies have been conducted to analyze the relationship between violent video games and the personal aggression. The study conducted by the National Academy of Sciences of the United States of America and published in October 2018, supports the general belief that a person playing a violent video game will experience increased physical aggression over time. On the other hand, the study conducted by the Oxford Internet Institute and published in the Royal Society Open Science in February 2019, states that violent video games do not drive physical aggression in teenage children.

Since there are divergent research studies to back each side’s argument, ultimately it will come down to which report the court is likely to rely on, while deciding a matter. In Dominance Games Private Limited v. State of Gujarat, decided by the Gujarat High Court in December 2017, when legality of poker was considered, both parties cited studies which supported their respective arguments of whether it was a game of skill or game of chance. The court gave precedence to the report which they agreed with more, and in order to support their decision making.

However, it must be noted that the research studies cited above do not cover the Indian demographic. They focus solely on the impact of violent video games on children in their respective regions i.e., the United States of America (“USA”) and the United Kingdom (“UK”). This poses a big question on the applicability of these research studies to determine the impact of these games on Indian children. How would a study conducted in the USA based solely on American children be helpful to determine the impact of violent video games such as PUBG on the behavior of Indian children, given that their upbringing and societal values greatly vary. There will be a big question mark on whether Indian children are affected (or not affected) by violent video games in the same manner as the children in the USA or the UK.

The lack of research studies in this area will definitely pose a roadblock for the courts in India. It is possible that the courts will direct the Central Government to constitute a commission to carry out such a study to arrive at its conclusion or the courts may take assistance from experts on this subject matter. The Supreme Court of India in State of Himachal Pradesh v. Jai Lal  held that “An expert witness, is one who has made the subject upon which he speaks a matter of particular study, practice, or observation; and he must have a special knowledge of the subject.” Therefore, a person who has special knowledge and expertise in behavioral sciences may be called upon in court to provide assistance in arriving at a conclusion on the effect of these games on children in the Indian context.

Therefore, if legality of PUBG is considered, the adjudicating court will have to weigh in all legal aspects, in addition to the studies cited before judging the matter on the basis of legal principles.

Another aspect to the violence argument is differential treatment towards one particular game. There cannot be a separate approach towards different games of the same class. The studies, whether in support or in opposition of the relationship between video games and aggression in its players, do not consider only one game. The results in these reports are generic in nature and is based on research of several video games which are labeled as “violent”. Consequently, if PUBG is banned because it is deemed to promote violence and aggression amongst its players, then all such shooting and surviving games will also have to be banned too, for the same reason.

Whether the MEITY re-iterates its stance taken in front of the Bombay High Court or it brings any new order to ban, will be a very interesting space to watch out for. In any case, I doubt this is last time we are hearing these arguments in a court and it is hoped that at the next opportunity, the courts do determine this conclusively.

Disclaimer: This post has been prepared for informational purposes only. The information/or observations contained in this post does not constitute legal advice and should not be acted upon in any specific situation without seeking proper legal advice from a practicing attorney.

Learn more about our Sports & Gaming practice.

#PUBG #Punjab #Haryana #Sports #Entertainment #Gaming #India #GameChangerLawAdvisors