Since the Indian chapter of the International Comparative Legal Guide – Cybersecurity 2024 was written, there have been some regulatory changes in the laws with the overhaul of the IPC, CRPC, and the Indian Evidence Acts to make them more in line with the new age technologies. This changes the Indian Penal Code, 1860 (“IPC”) to Bharatiya Nyaya Sanhita, 2023 (“BNS”), whilst the Code of Criminal Procedure, 1973 (“CrPC”) will be known as Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), and the Indian Evidence Act (“IE”) as Bharatiya Sakshya Bill, 2023 (“BSB”).
With this, there is a clear direction to have an overhaul of the IT Act, 2000 as well, which will become the “Digital India Act” and is likely to be in place after the General Elections later this year. Also, the Government from the above is making sure that the laws are very tightly knitted together, with the Digital India Act being the overarching Act in the space of cybersecurity, AI, and data privacy, the Digital Personal Data Protection Act, 2023, and the likely sectoral level laws all weaved into a comprehensive framework.
In the meantime, there have been a few advisories that have been issued on the proper use of AI and curbing the rampant misuse of these tools for the spread of fake videos and news. The Government has taken a firm stand on these.
GOI Advisory for Regulation of Unverified Content posted on Social Media Platforms
The Ministry of Electronics and Information Technology (MeitY) shared advisory bearing no. e.No.2 (4) /2023- Cyber Laws-2 on December 23, 2023, to emphasise the need for intermediaries to monitor the content being generated and propagated on their platforms which was fake or not permissible under Rule 3(1) b of IT rules and the penal consequences of such acts.
As a follow up to this, the Government of India, through the Cyber Law and Data Governance Group, has issued an Advisory on March 1, 2024, and revised on March 15, 2024, bearing no. e.No.2 (4) /2023- Cyber Laws-3. The Advisory requires due diligence of content being posted on AI platforms and Intermediaries under the IT Act 2000 and as per the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
As per these guidelines, the AI platforms and intermediaries are required to take the following steps to ensure due diligence in respect of content being posted on these platforms:
- It should not permit users to host, display, upload, modify, publish, transmit, store, update, or share any unlawful content as outlined in Rule 3(1) (b) of the IT Rules, or violate any other provision of the IT Act and other laws in force.
- The intermediaries and platforms have to ensure that their computer resource does not permit any bias or discrimination, or any such content generated by using AI Models, Generative AI or LLM, or any software or algorithm.
- The content generated should not threaten the integrity of the electoral process in the view of upcoming general elections in the country.
- The use of under-testing or unreliable AI models or LLM/Generative AI algorithms or software and its availability to users on the Indian internet can be done only after appropriately labelling the possible inherent fallibility or unreliability of the output generated.
- Further, consent in the form of pop-up mechanisms is to be used to draw the attention of the user and inform him/her explicitly about the fallibility or unreliability of the output generated by such under-testing and unreliable LLM/ Generative AI algorithms or software.
- Clear terms of service and user agreements of the consequences of dealing with unlawful information on the platforms, including disabling of access as well as the removal of non-compliant information, suspension, or termination of usage and access rights of the user to his account as the case may be, and also the fact that such offences are punishable under applicable IT laws.
- Where any intermediary or AI platform permits the creation, generation, or modification of a text, audio, visual, or a combination of these through its software or any other computer resource, in such a manner that such information may be used potentially as misinformation or deepfake, it is advised that such information created, generated, or modified through its software or any other computer resource is labelled or embedded with a permanent unique metadata or identifier, by whatever name called, in a manner that such label, metadata, or identifier can be used to identify that such information has been created, generated, or modified using computer resource of the intermediary, or identify the user of the software or such other computer resource, the intermediary through whose software or such other computer resource such information has been created, generated, or modified and the creator or first originator of such misinformation or deepfake.
- The advisory further reiterates that any non-compliance to the provisions of the IT Act and/or IT Rules would result in potential penal consequences to the intermediaries or platforms or its users when identified, including but not limited to prosecution under IT Act and several other statutes of the criminal code. All intermediaries are required to ensure compliance with the above advisory with immediate effect.[1]
Prior to this, the Union Government on November 7, 2023 issued an advisory to social media intermediaries to identify misinformation and deepfakes by taking the following steps:
- Ensure that due diligence is exercised and reasonable efforts are made to identify misinformation and deepfakes, and in particular, information that violates the provisions of rules and regulations and/or user agreements;
- Ensure such cases are expeditiously actioned against, well within the timeframes stipulated under the IT Rules 2021;
- Ensure users are caused not to host such information/content/Deep Fakes;
- Remove any such content when reported within 36 hours of such reporting; and
- Ensure expeditious action, well within the timeframes stipulated under the IT Rules 2021, and disable access to the content/information.
The intermediaries were reminded that any failure to act as per the relevant provisions of the IT Act and Rules would attract Rule 7 of the IT Rules, 2021 and could render the organisation liable to losing the protection available to intermediaries under Section 79(1) of the Information Technology Act, 2000.[2]
Thus, the government has been taking consistent steps to curb the menace of unverified content, deepfakes, fake news, and other such posts on social media and intermediary platforms that are generated using LLM or Generative AI algorithms and software and are likely to mislead the general public or unduly affect the public opinion to manipulate the masses prior to upcoming general elections in the country. Such content can cause widespread unrest and create an atmosphere which is not conducive to free and fair elections. The steps taken by the Ministry by way of these advisories are likely to have a positive impact in ensuring peace, law, and order and preventing circulation of fake news or unverified content.
Endnotes
[1] Cyber Law and Data Governance Group – MeitY, Advisory of March 15, 2024, at: meity.gov.in/writereaddata/files/Advisory 15March 2024.pdf
[2] Union Government, Advisory of November 7, 2023, at: https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1975445
