The Ministry of Electronics and Information Technology (“MeitY”) vide its advisory dated March 01, 2024 (“Advisory”) has highlighted concerns about intermediaries failing to meet due-diligence obligations under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules“). MeitY through this Advisory, has directed intermediaries/platforms to adhere to the following:
1. Content Regulation
Intermediaries shall ensure that the use of Artificial Intelligence (“AI”) models, Large Language Models (“LLMs”), generative AI, software, or algorithms complies with Rule 3(1)(b) of the IT Rules, preventing users from hosting, displaying, uploading, modifying, publishing, transmitting, storing, updating, or sharing unlawful content.
2. Electoral Integrity
All intermediaries or platforms shall prevent any bias, discrimination, or threats to the electoral process through the use of AI models, LLM, generative AI, software, or algorithms.
3. Trial/Pilot Version Testing and Deployment
The use of any trial/pilot version or unreliable AI models, software, or algorithms on the Indian internet requires explicit permission from the Government of India. Deployed technologies must be labelled to inform users about potential fallibility or unreliability. Further, a ‘consent popup’ mechanism shall be used to inform the users about the possible and inherent fallibility or unreliability.
4. User Awareness
Users shall be explicitly informed, through terms of service and user agreements, about the consequences of engaging with unlawful information on the platform. Consequences may include disabling access, removal of non-compliant information, suspension, termination of access, or legal action under applicable law.
5. Source Tracking Deepfake and Misinformation
Intermediaries facilitating synthetic creation, generation, or modification of information prone to misuse (misinformation or deepfake) shall label or embed such content with a permanent unique identifier. This identifier should enable the identification of the intermediary, the user, and the creator or first originator of the misinformation or deepfake.
6. Non-Compliance Consequences
Non-compliance with the Information Technology Act (“IT Act”) and/or IT Rules may lead to penal consequences, including a fine or penalty starting from INR 1 lakh (Indian Rupees One Lakh Only) to INR 10 Lakhs (Indian Rupees Ten Lakh Only) and more importantly imprisonment of 1 (one) year to life imprisonment under the IT Act and other relevant statutes of the criminal code. Further, in case of violation, intermediaries shall be allowed to claim any exemption from liability for any third-party information, data or communication link made available or hosted by them under Section 79(1) of the IT Act.
7. Compliance Deadline
Intermediaries have been urged to ensure immediate compliance and submit an Action Taken-cum-Status Report to the MeitY by March 15, 2024.
Intermediaries have also been reminded of their responsibility to uphold the IT Rules and IT Act, with a focus on content regulation, electoral integrity, transparent AI deployment, user awareness, and prevention of deepfake-related misuse. Failure to comply may result in legal repercussions.
Annexure A
Rule 3(1)(b) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
Rule 3 (1): Due Diligence by an Intermediary
An intermediary, including a social media intermediary, a significant social media intermediary and an online gaming intermediary, shall observe the following due diligence while discharging its duties, namely:—
(b) the intermediary shall inform its rules and regulations, privacy policy and user agreement to the user in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice and shall make reasonable efforts by itself, and to cause the users of its computer resource to not host, display, upload, modify, publish, transmit, store, update or share any information that —
(i) belongs to another person and to which the user does not have any right;
(ii) is obscene, pornographic, paedophilic, invasive of another’s privacy including bodily privacy, insulting or harassing on the basis of gender, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or an online game that causes user harm, or promoting enmity between different groups on the grounds of religion or caste with the intent to incite violence;
(iii) is harmful to child;
(iv) infringes any patent, trademark, copyright or other proprietary rights;
(v) deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature or, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify;
(vi) impersonates another person;
(vii) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognisable offence, or prevents investigation of any offence, or is insulting other nation;
(viii) contains software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource;
(ix) is in the nature of an online game that is not verified as a permissible online game;
(x) is in the nature of advertisement or surrogate advertisement or promotion of an online game that is not a permissible online game, or of any online gaming intermediary offering such an online game;
(xi) violates any law for the time being in force;
Explanation — In this clause, “user harm” and “harm” mean any effect which is detrimental to a user or child, as the case may be.
