Perry4Law has been receiving lots of queries regarding legality of online poker in India. In order to spread public awareness and provide certainty to the otherwise grey area of playing online poker in India, Perry4Law is discussing the same here. This article is neither a legal opinion nor should it be relied upon, whether directly or indirectly, for any legal or judicial purposes.
To start with, any online poker website of India that wishes to engage in legal business must comply with Indian laws like Indian Penal Code, 1860, Code of Criminal Procedure, 1973, Indian Information Technology Act, 2000, the Public Gambling Act, 1867, Foreign Exchange Management Act (FEMA) 1999, etc. Taxation, money laundering and payment gateways issues must also be taken care of by those proposing to open online poker websites in India. Further, various guidelines and rules issued from time to time must also be complied with by online poker websites of India.
In short, it is upto you to decide whether your online poker activity is a cyber crime and offence or a fun enriched gaming activity. There is a very thin line between a cyber crime and a game of fun and skill and a slight mistake or negligence can make the poker activity a punishable offence in India.
The safest bet to run and manage a legal online poker website in India is to draft the terms and conditions and other documents very carefully keeping in mind the laws of various States. Further, such documents must not only reflect the applicable provisions under various Indian statutes but they must also incorporate the binding force of judicial precedents as applicable in India.
Online gaming industry in India is facing the conflict of laws hurdles as well. For instance, online poker may be legal in one country whereas it may be illegal in another. Now online poker is played using Internet and a website that can be accessed from any part of the world. This makes the entire scenario very complicated.
Let us take a hypothetical scenario in this regard. Suppose John Doe has booked a domain name Poker in United States and made it operational at a server located in Germany and is residing in India and is providing online poker services throughout the world. Now which nation would govern the online playing of poker at the website?
United States may claim that the domain has been booked in its jurisdictions and is managed by institution/organisation residing in US so it has the jurisdiction. Similarly, Germany may claim that since the server hosting the website Poker is located within its jurisdiction Germany has the final say. India may claim that since John Joe is residing in India, it is India which has the jurisdiction. Similarly, any other nation may claim that since the website Poker is accessible from its jurisdictions and its residents are playing at Poker website it has the jurisdiction.
Thus, for a single website Poker, multiple nations may exercise jurisdiction. If John Doe has not taken sufficient precautions, the conflict of laws in cyberspace may land him in big legal trouble.
As far as India is concerned, the legality of online gambling and gaming in India is still in a fix. There are no dedicated law that can govern online gaming and online gambling segments in India. As on date, we have no dedicated online gambling and gaming laws in India. However, keeping in mind the importance of this area there must be dedicated online gambling and gaming laws and regulations in India so that this area is properly regulated and chances of e-commerce frauds and cyber crimes can be minimised.
Perry4Law believes that cyber law due diligence, Internet intermediary liability and cyber due diligence for Indian companies must be kept in mind by various online poker websites and players in India to avoid legal liabilities.