Paving the Way for Right of Expression through Online Games in India

INTRODUCTION

Online platforms including games have become important channels for the practice of free speech and expression in the digital age. Online games provide interactive settings where users can express themselves in a variety of ways, such as through interacting with other players, producing original material, and taking part in online communities. ¹

Through the use of in-game chat tools, avatar customization, and game customization, these platforms offer social connection, self-expression, and creative outlets. Online games frequently function as digital platforms for artistic expression, ² cultural exchange, and narrative storytelling. In order to communicate themes, messages, and ideas, game developers employ interactive storytelling approaches, immersive settings, and dynamic gaming mechanisms. ³ This gives players the chance to connect with a variety of storylines, investigate difficult subjects, and express themselves through gameplay decisions.

The ever-growing popularity of online games as a natural consequence of advancement in technology and access to such technology is undeniable and these online games have been contended to be a medium of expression ⁴ worldwide. In various literature it seems to be settled that these games are a form of art. ⁵

FREEDOM OF EXPRESSION THROUGH ONLINE GAMES

“To deny people their human rights, is to challenge their very humanity,” the words of Nelson Mandela, accentuating the enormity of the significance of human rights. Human rights, if simply described, are rights that a human has by virtue of being a human. The Universal Declaration of Human Rights enumerate such rights and Article 19 ⁶ of the Declaration refers to the right to have freedom of expression. Many states have protected the same in their respective legal systems including India. The Indian Constitution guarantees the right to freedom of expression through Article 19(1)(a). ⁷

In a historic event, online games have been recognized by the High Court of Karnataka as a form of expression in India for the first time in the judgment of All India Gaming Federation v. State of Karnataka ⁸ in 2021.

Following the Karnataka High Court's ruling, which invalidated some sections of the Karnataka Police Amendment Act, 2021 (henceforth, the Act), this significant development transpired. The amendment sought to criminalize both games of skill and chance if the game involved any stakes. The Karnataka High Court heard a challenge to the same, arguing that as skill and chance games are diametrically opposed, the state's amendment eliminated any differentiation between them and treated them equally. Because the state's declaration of an absolute embargo was disproportionate and excessive, it was subject to the manifest arbitrariness test. Thus, while quashing the provisions of the Act which had imposed absolute restraint on online games, the court made the following observation,

Games arguably may not convey a discernible message, but even the noncognitive forms of expressions can be a means of promoting self-development and therefore, do not readily fall within the “unprotected category of expression.” The interactivity of online games does not cut their status as expression but enhances the expressive impact of a medium. Playing of games creates a mood as an abstract art, apart from causing a subtle shaping of thoughts which characterizes all artistic expression. These provisions of our constitution having become expansive by the judicial process do not deny protection to abstract painting, avant-garde music, and nonsensical poetry. Therefore, the games of skill fall within the protective contours of Article 19(1)(a). ⁹

The Karnataka High Court not only recognized that online games are a means of expression, but also extended the protection of Article 19(1)(a) to these games. Accordingly, every citizen of India can exercise his right to play online games and can seek remedy from the courts if denied so. Granting it a status of fundamental right is momentous for the people of India as one can now assert his right to play online games and this right cannot be taken away by the laws made by the legislature or the actions of the executive wing of the government. Any action that would take this right away would be quashed by the High Courts or the Supreme Court, in the same manner in which in the present case the Karnataka High Court quashed the provisions of the Karnataka Police Amendment Act, 2021.

The Court made a reference to Interactive Digital Software Association v. St. Louis County, ¹⁰ in which the Circuit Court held that video games constituted a “form of expression” and were entitled to the protection under the Constitution. Moreover, the Supreme Court of the U.S. in Brown v. Entertainment Merchants Association ¹¹ held that these games are entitled to protection under the First Amendment ¹² at par with movies, plays and books.

These games have already been recognized as a form of expression by a few other states like France, when in 2006, the French Minister of Culture granted subsidy in tax to video games characterizing them as a form of artistic expression. ¹³ In 2018, the government of Germany acknowledged artistic values in video games while allowing Unterhaltungssoftware Selbstkontrolle (USK) ¹⁴ to examine them. ¹⁵ Some video games are also exhibited as art in museums, like the Museum of Modern Art (MoMA). ¹⁶

The recognition and protection extended by the Karnataka High Court in India is a huge relief to the 42.5 crore (a crore is a unit of value equal to ten million) gamers, ¹⁷ which makes India the second largest in terms of the number of online gamers in the world. Like any art form, video games serve as blank canvases for developers (artists) to create experiences that are both intensely immersive and meaningful for the players. Hence, they rightly so deserve protection from absolute embargo by the state.