Online Gaming Companies put forth that the State cannot abolish distinction between ‘game of skill’ and ‘game of chance’ while challenging the Tamil Nadu Prohibition of Online Gambling and Regulation Of Online Games Act 2022

In the matter of All India Gaming Federation vs State of Tamil Nadu & Ors[i], the Division bench of Chief Justice SV Gangapurwala and Justice PD Audikesavalu earlier had refused an interim relief to the gaming companies.

This litigation comes forth as the gaming companies while challenging Tamil Nadu Prohibition of Online Gambling and Regulation Of Online Games Act, 2022, state that there is a considerable distinction between a ‘game of skill’ and ‘game of chance’ and the same could not be abolished by enactments of the State.

Senior Counsel AM Singhvi quoted that “Games of skill are per se always a distinct class differentiated from game of chance. Watershed distinction cannot be abolished by a deeming function” while laying emphasis on the fact that this very distinction has existed for more than 100 years. Furthermore, even the predominant nature of the game has to be looked into and an ‘element of chance’ in a game of skill would not change the nature of the game.

The arguments by the Counsel also went further to draw a comparison with games of bridge, chess and the cards and quoted as follows, “Take the game of bridge. No one will say it’s a game of chance. It’s a game of skill. Same in chess. But even in these games, when I give out the cards, there’s some chance. Que is an element of chance in an admitted game of skill will change its nature. Then comes the predominance test. Some element of chance will not change the predominant nature.”

The State of Tamil Nadu has been seeking a complete prohibition / ban instead of a proposed regulation of the games. Tamil Nadu Gaming Act had been in existence since 1930 to regulate the physical games. The State government amended it in 2021 for banning online games, but the then first Division Bench of the High Court struck down the amendment. The State claims that the games are a root cause of several suicides and poverty among families. Senior Counsel Kapil Sibal for the State concluded that the prohibition which crux of this litigation has been a move for public interest. He quoted, “My point is that it is private interest versus public interest. These online gaming platforms are there to make money and destroy the lives of families. Your Lordships will have to decide how to interpret an Act which provides for protection of families in this State.”

The matter has been listed for further arguments on July 18. It will be intriguing to see how the situation of online gaming prohibition unfolds in Tamil Nadu.

More on Online Gaming, Government to impose 28% GST on Online Games, Casinos & Horse Racing

Finance Minister Nirmala Sitharaman on 11 July announced that the Goods and Service Tax (GST) council will impose a 28 per cent tax on online gaming, horse racing and casinos. This was one of the outcomes of the 50th GST Council Meet, 2023. It was previously recommended in the 47th meet in June 2023 by Group of Ministers who were tasked to submit a report on GST levy for Casinos, Race Courses and Online Gaming.

Before the 28% tax slab, the gaming industry was charging an 18 % GST levy. Thereby, the profit ratios of online gaming platforms will be adversely affected. This move aims to close a loophole that fantasy sports companies had previously utilized to justify their offerings as skill-based. This implies that a user needs to pay 28% GST for joining an online gaming contest and on further winning any amount, 30% tax will be deducted under section 194BA of the Income Tax Act, 1961.

Revenue Secretary Sanjay Malhotra said that by this implementation the exchequer would get an estimated additional revenue of Rs. 20,000 crores annually. The companies would earlier take refuge under the differentiation of ‘game of skill’ and ‘game of chance’ and paid 18 % GST on Gross Gaming Revenue. (GGR).

As per a Forbes India report, there were over 400 million online gamers in India and out of these, around 90-100 million are regular gamers. The impact of this move will be considerable.

Delhi High Court refuses to stay “Nyay: The Justice” movie based on Sushant Singh Rajput, holds that Publicity and personality rights are not heritable and do not survive the death of the celebrity

A recent case on personality rights after the death of a celebrated actor is in Krishna Kishore Singh vs Sarla Saraogi[ii] filed in the Delhi High Court. The case filed by late actor Sushant Singh Rajput’s father seeking a permanent injunction restraining the film makers of “Nyay: The Justice” from using Rajput’s name, caricature, likeness without prior permission of the legal representatives of the late actor.

The film in question was released in 2021 one the OTT Platform, Lapalap. While the film is touted to be a biopic of Sushant Singh Rajput and it can be deduced that any discerning viewer can draw an easy reference to the similarity of facts as portrayed in the film, the film makers argued that the film does not make any reference to the name, image or photograph of the late actor.

The single bench of Justice C. Hari Shankar held firstly that the impugned film was an overt re-enactment of the late actor’s life with an exaggerated emphasis on the circumstances that led to Rajput’s death and the following investigation.

The Court relied on several landmark precedents pertaining to personality rights in the case of Khushwant Singh vs Maneka Gandhi[iii], Titan Industries vs Ramkumar Jewellers[iv], Shivaji Rao Gaikwad vs Varsha Productions[v] and opined as follows:

  1. That the right to publish and disseminate information in the form of a cinematographic film was guaranteed under Article 19 (1) (a) of the Constitution, as long as the same does not come under the reasonable restrictions under Article 19 (2).
  2. Personality rights protect the individual’s interest in his image, voice or likeness.
  3. Publicity and personality rights are not heritable. The right to publicity, personality and privacy rights of Sushant Singh Rajput died with his death. The same do not survive for espousal by the late actor’s father.

The Court also made a remarkable observation that the concept of ‘celebrity rights’ is completely a made-up concept and the same are not exclusive rights which are available only to celebrities. The law cannot be a tool to promote a sense of celebrity culture. Rights which emanate from one’s personality, and persona, would be available to everyone, and not only to celebrities.

Thereby, the injunction to the late actor’s father was refused by the Delhi High Court.

Punjab & Haryana High Court quashes FIR filed in 2019 against Colors TV and the actors and producers of the show ‘Ram Siya ke Luv Kush’ for alleged wrongful portrayal of the characters

An FIR was filed in 2019 by members of the Valmiki community against the makers of the television serial ‘Ram Siya ke Luv Kush’ for wrongful portrayal of facts for Bhagwan Valmiki Ji. The First Information Report was filed for offences under Section 295-A and 34 of the Indian Penal Code, 1860.

Following this, the show was prohibited by the orders of the District Magistrate, Kapurthala under the powers of Section 19 of the Cable Television Network (Regulations) Act, 1995. To resolve the issue, the High Court of Punjab & Haryana set up a 5-member committee to frame guidelines and take corrective steps, following which the ban on the show was set aside by the High Court.

Since there was a settlement arrived at with the Director, Producer and actors of the show, the Petitioner admitted that following the complaint against the show makers, nothing objectionable was portrayed by Colors TV with respect to Valmiki or against the Hindu religion. Therefore, the Court recently in Rahul Kumar Tewary vs State of Punjab[vi] quashed the FIR and all consequent proceedings against the Petitioner.

Madras High Court holds that person forwarding Social Media Messages liable for its contents

A set of criminal proceedings were initiated against a Bharatiya Janta Party (BJP) politician and actor, S. Ve Sheker for derogatory and obscene remarks against women journalists. The cause of action arose when Sheker forwarded an abusive and vulgard comment on his Facebook account back in April 2018.

The Madras High Court observed that a person of high stature and having a considerable impact with many followers should have exercised more caution and care while forwarding messages of such nature.

Justice Anand Venkatesh observed, “The more a person is popular in the society, he also carries more responsibility in what he conveys to the society. The petitioner, in the instant case falls under the category of a person of high stature with many followers and he ought to have exercised more caution before forwarding the message from his Facebook account.”

The Court further noted that a person forwarding a message will be held as good as the person publishing the same and all the necessary ingredients are satisfied under Section 504 of the Penal Code wherein an intentional insult was caused with the intent to provoke breach of peace. Since the messages also contained an indecent attack on a particular community of women and other press reporters, the offence under Section 509 of the Penal Code as well as Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, 2002 were also considered which Sheker is liable for.

Madras High Court quashes COTPA proceedings against Dhanush and Aishwarya Rajnikanth for portrayal of Dhanush smoking a cigarette on the poster of “Velaiyilla Patthathari” movie

The Madras High Court quashed criminal proceedings under Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 against actor, Dhanush and the Director, Aishwarya Rajnikanth of the film “Velaiyilla Pattathari” wherein Dhanush was shown smoking a cigarette on one of the theatrical posters of the film.

Justice Anand Venkatesh that such proceedings will amount to an abuse of the powers of the Court and opined as follows, “In the instant case, the only allegation that has been made in the complaint is that the advertisement banners of the movie were found to carry the picture of the lead actor prominently smoking cigarette. This act, per se, cannot be brought within the purview of Section 5 of the COTPA since the display was not done by persons engaged in the production, supply or distribution of cigarettes or any other tobacco products and the person, who was depicted as smoking cigarette, was not under any contract with the entity or the person engaged in production, supply or distribution of cigarettes or any other tobacco products nor he was promoting their product”

The said film’s poster which created the dispute was released back in 2014. The Court went on to question such an inordinate delay of eight years to report and lodge a complaint in the Court. However, the Court did not deal with limitation or the question of delay and laches as the the complaint was quashed on merits.

Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) announces a Hollywood Actors Strike

After the writers’ strike to fall on Hollywood, the actors of the Hollywood fraternity have joined hands to go on a strike from July 13. This is the first time in 60 years that Hollywood is facing an industry wide complete shut down.

The SAG-AFTRA represents 1,50,000 film and television actors and speaks on issues, concerns and welfare of the creative industry in Hollywood. The strike follows issues regarding pay, takeover of Artificial Intelligence (AI). The walkout was announced by Screen Actors Guild after it failed to reach a new labor agreement with the Alliance of Motion Picture & Television Producers, which represents studios including Walt Disney Company and Netflix Inc.

The walkout by actors would stop all production of film and scripted television shows in the United States, except for independent productions that are not covered by labor contracts with unions.

End notes

[i] WP 13203 of 2023

[ii] CS (COMM) 187/2021

[iii] 2001 SCC Online Del 1030

[iv] 2012 SCC Online Del 2382

[v] 2015 SCC Online Mad 158

[vi] 2023 SCC Online P&H 868