PUBG’s India Respawn: Within the (Legal) Zone?

Picture for representational purposes only. Seen, a player in Cambodia playing PUBG.

Battlegrounds Mobile India (“BGMI”) is a last-man-standing shooter game (in Gaming parlance – a Battle Royale), which is, for all intents and purposes, an exclusive Indian re-launch of PlayerUnknown’s Battlegrounds Mobile (“PUBG”), which had been banned by the Government of India in September 2020.

BGMI was launched for public access in India on July 2, 2021.

Access to PUBG was blocked (colloquially termed as a ‘ban’, as also referred to in this article) on September 2, 2020 by the Government of India along with 117 other Chinese apps. This followed the ban of 59 Chinese apps on June 31, 2020.

The ban was carried out under Section 69A of the Information Technology Act, 2000 (“IT Act”) read with the Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009 (“2009 IT Rules”).

The Ministry of Electronics and Information Technology’s (“MeitY”) press release dated September 2, 2020 stated that these apps (including PUBG) were being blocked in view of information available they are engaged in activities which is prejudicial to sovereignty and integrity of India, defence of India, security of state and public order.”

The press release further stated that MeitY had received many complaints against these apps of “stealing and surreptitiously transmitting users’ data in an unauthorized manner to servers which have locations outside India.”

In addition, the game was also criticized on account of its addictive effect on Indian adolescents, besides the graphic violence it exposed them to.

Was the ban in compliance with the law?

The “law”, here, would be the IT Act and the 2009 IT Rules. Section 69A of the IT Act provides that the Central Government can, in the interest of sovereignty and integrity of India, security of the State, etc., direct any intermediary to block access to any “information generated, transmitted, received, stored or hosted in any computer resource”.

One can note the similarity of the language of Section 69A of the IT Act to that of the MeitY press release. The terms such as “sovereignty and integrity of India” are quite broad. While these are not elaborated upon in the press release, this would presumably have been done in the written directions issued by the Designated Officer to the intermediary, as prescribed under the 2009 IT Rules. The law does not require such written directions to be made public.

It is also important to remember that this action from the Indian government came amidst border tensions flaring up with China. Since the apps were allegedly leaking data to China, this was likely part of the justification for the ban.

Can affected parties challenge such a ban? How?

It is possible that the Review Committee set up under the 2009 IT Rules may itself find that the written directions for blocking of information are not in conformity with Section 69A of the IT Act, and would then set aside the directions and issue directions for unblocking.

On the other hand, if the intermediary (such as Google or Apple) or the originator (PUBG Corporation) is aggrieved by the directions and wishes to challenge the same, it would have to approach the concerned High Court by way of a writ petition under Article 226 of the Constitution of India.

Why is PUBG being allowed to re-launch as BGMI?

Technically, this is not a re-launch. Krafton Inc., a South Korean company, which is the publisher of BGMI, touts BGMI to be an India-focused game meant exclusively for the Indian market, which appears to have been greatly welcomed in the Indian e-sports ecosystem. Krafton also says that it is no longer controlled by any Chinese company (although, reportedly, about 15% of Krafton’s shareholding is still with the Chinese company Tencent, making it the second largest shareholder).

We noticed numerous media reports stating that, in response to an RTI application, the Central Government had clarified that it would not preemptively ban BGMI. This is a rather liberal interpretation of what the government actually stated, which was that it does not grant permission for launching any app (because no such permission is required).

Technically, the government cannot preemptively ban any app, because to block any information under Section 69A of the IT Act, there would have to be a written justification based on information received as to how such an app was undermining the sovereignty or integrity or defence of India. Any preemptive ban on the basis of hypothetical violations would stand on a very weak footing before the High Court.

Won’t the government ban BGMI now that it has launched?

Apart from ostensibly severing ties with China, Krafton has also tried to assuage the Indian government’s concerns by limiting the BGMI users’ data to being hosted on servers only in India and Singapore. (Fingers crossed that India doesn’t get into any sort of altercation with Singapore.)

However, the privacy policy for BGMI tries to wriggle out of the above server restriction by further stating that user data may be transferred to “other countries and/or regions to operate the game service and/or to meet legal requirements.” This is a very obvious red herring, which the Indian government may point to in any future action against BGMI.

In fact, during the early access run of BGMI, IGN reported that it had managed to detect that the game was still sending certain user data to servers in China. Krafton claims this to have been an error which has since been patched.

If the game indeed no longer shares any data with China, that should ease some of the friction with the Indian government; not to mention the other placatory changes in the game itself, such as a visible reduction in the gore factor.

Can’t individuals simply allow BGMI to send their data to China or wherever? (“Miya biwi raazi, toh kya karega qazi”, etc.)

Great question! The MeitY press release does say that the apps were “transmitting users’ data in an unauthorized manner.

The creators of BGMI appear to be hedging that since the concern is regarding unauthorized transmission of individual users’ data, the solution to this is simply to obtain authorization directly from such individuals. This is reflected in their ‘Statement on the recent concern on data transfer of [BGMI]’, which draws attention to their privacy policy.

However, as a general principle of law, two entities (individuals or companies) cannot enter into a contract to do any illegal acts. Therefore, if the Central Government considers transmission of Indian citizens’ data to China as a threat to the security of India, such transmission of data would fall foul of Section 69A of the IT Act. The government can then block the apps indulging in such transmission, regardless of whether the users have given their consent.

Given the visible efforts of Krafton to comply with the applicable Indian laws, however, it remains to be seen how the Central Government views this launch.