As per a leading news portal Techradar, gaming industry is booming like never before. In India, the gaming industry is predicted to grow at a 22% CAGR while crossing ` 4000 crore ($776m) by 2017. This industry in India is varied, from mobile gaming to consoles; the market is steeping ahead of the limitations which were there during the 2000-2010 period. However, amongst many other roadblocks are the legal and regulatory environs surrounding this very gaming cloud. Lex Witness gets into a conversation with Salman Waris, Partner – Head TMT and IP Practice at TechLegis Advocate & Solicitors
Artificial viewing, also known as augmented reality, is an amazing breakthrough that is changing the conventional spaces of – Education and Gaming. Interactive learning and gaming have taken over the digital space with more possibilities making it as the current phenomenon in gaming which has created new horizons within this sector, and has brighter prospects.
Just like any other app-based game currently available in the market, there are as such no restrictions on the download or for that matter playing of augmented reality games in the country. There is nothing under the IT Act that would prevent a user from downloading it and playing it. However, if the recently introduced Geospatial Information Regulation Bill, 2016, is passed by the Parliament of India, there could be certain restriction on the games services and operations in the near future in India. According to the draft, released by the Ministry of Home Affairs on May 4, 2016, it will be mandatory to take permission from a government authority before acquiring, disseminating, publishing or distributing any geospatial information of India.
Even though the Bill is only in the draft stage and has been opened up for public suggestions, it might have implications on the operation and services of Pokémon Go that uses Augmented Reality where the avatar is displayed at the player’s current location along with a map of the player’s immediate surroundings. As players travel the real world, their avatar moves along the game’s map. Hence like other GPS and app based service providers Pokémon Go may also be required to take prior approval of the Government before it can offer its gaming map and GPS based services in India.
Pokémon Go Brings New ‘Augmented Reality’ Legal Issues to Light. Not to mention the whole issue of trespassing, Play safe, safety of children. The Privacy issues are particularly significant given the vast amount of data specially much of it being locational information that is collected through the app.
The makers of Pokémon Go have been upfront about their collection and use of personal data that may be shared with service providers and third parties. The privacy policy indicates that sharing of information with third parties, which may include marketers or other businesses, will be limited to aggregated data that can then be used for research, analysis, and demographic profiling. Besides, the Pokémon Go privacy policy offers little choice and in India with no Data protection law this becomes more critical an issue. Besides Pokémon Go has a 30-day period to opt-out of mandatory arbitration over potential disputes. However, there are two notable exceptions that highlight how laws can make a difference. The policy distinguishes between U.S. and European users for commercial email, with U.S. users automatically registered for emails unless they take steps to opt-out, while European users provided with the stronger safeguard of an opt-in approach. Once the service formally launches in India, users will presumably be offered the little option or standard of protection due to lack of Indian privacy or for that matter anti-spam laws.
Opt-ins for email, data sharing Similarly, the policy provides the option of opting out of data transfers to the U.S. (though with the warning that some services may be unavailable for those that do so). The choice of “localizing” personal information reflects mounting concerns with U.S. surveillance activities and may signal increasing demand from the public to have the choice of having their data kept outside that country.
The privacy issues, including concerns over initial settings that shared detailed Google account information with the company, prompted U.S. Senator Al Franken to demand public answers on the privacy practices. The Google information sharing setting has since been altered, but even more interesting may be the Pokémon Go issues that are unique to games that blend the real and virtual.
Additionally, with the Pokémon Go blending the real and virtual world, there is always concern of trespass. For example, trespass related provisions of the Indian Penal Code may come into play as players find themselves wandering into private property in search of virtual characters. For instance, the U.S. Holocaust Memorial Museum and Arlington National Cemetery have both requested that players refrain from catching characters there. There are also reports of potential physical harm for players as they visit places that may be unsafe or unknown.
In analyzing AR’s impact on law and the judicial system, it is important to first look at how these technologies can change the very nature of on-the-ground law enforcement. As with many new technologies, there are possible benefits, but also risks, posed by AR technologies for law enforcement. It is not difficult to imagine how AR can be misused by criminals. AR has been already adopted by the pornography industry, even if the current applications are early-stage, the prediction is of full utilization of this technology for a more ‘interactive’ experience’. However, while as per law consenting adults can do what they like, but eventually AR porn will pave the way for the next wave: Augmented Reality Child Porn. You may want to dismiss this fact but the question is not if but when this will happen. Hence with AR having the ability to merge and reduce the differences between the real and the virtual world it only a matter of time before AR would be used to commit crimes in the real world or for that matter real crimes would happen in the virtual world. Hence there is urgent need to not only amend the law to take AR into account but also train the law enforcement officers to be able to investigate and prevent crimes through AR.
The lack of Data privacy regulation in India does make matters complicated in AR as the very basis of AR is premised on data, whether its locational data or personal data or for that matter players preferential data. Privacy is a major concern in AR and especially in games like Pokémon Go where the privacy policy clearly indicates that the company will be sharing information with third parties, which may include marketers or other businesses. As it is India we have such a callous attitude and a lap of a culture for appreciation of individual privacy.
The IT Act 2000 as Amended under section 79 that deals with the Liability of service providers, lays down a clear obligation on the service provider to undertake “all due diligence” and the IT Rules further lay down the procedure etc. for conducting the same. However even after 8 years of passing of the amendments and the Rules there is little practical implementation of the same.
The Pokémon Go terms unsurprisingly state that the company disclaims all liability for any property damage or personal injury, but the foreseeability of potential harm suggests that these terms may ultimately face legal challenge.
“The use of augmented reality is at a very early stage, but given the massive popularity of Pokémon Go, there is every reason to believe that the technology – and the legal issues that come with it – are here to stay. We are sitting on a cyber time bomb here in India, fortunately for the country we have not had major cyberattacks or coordinated and targeted electronic breaches as in the west, however even after the passing of the 2008 amendments and the IT rules there remains a huge gap between the law and the actual implementation of the same with the advancement of the technology. Besides the IT Act, I think we surely need a Privacy/ Data protection law and also a law to protect children online.”
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