The Ministry of Electronics and Information Technology (“MeitY” or “Ministry”) has issued an advisory on December 26, 2023 to all intermediaries, emphasizing the adherence to the IT Rules and compliance with the instructions on prohibited content (the “Advisory”). This directive specifically targets concerns related to misleading information propagated through AI generated deepfakes. The Press Release for the advisory is accessible here.

The Advisory is issued to all intermediaries, urging strict compliance with existing Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (last updated on April 06, 2023) (the “IT Rules”) which supersede the Information Technology (Intermediary Guidelines) Rules, 2011, and are applicable under the Information Technology Act, 2000 (the “IT Act”). Rule 3(1) of the IT Rules, enlists the due-diligence duties of an intermediary, which includes, (i) a social media intermediary, which primarily enables online interaction between users and allows users to create, upload, share, disseminate, modify or access information; (ii) a significant social media intermediary, which is a social media intermediary having more than 50,00,000 (fifty lakh) registered users in India, and (iii) an online gaming intermediary, which enables the users to access one or more online games, through its computer resource. As per Rule 3(1)(b) specifically, the intermediary is required to, (i) clearly inform the user of regulations, privacy policy and user agreement, and (ii) make reasonable efforts to cause its users to not host, display, upload, modify, publish, transmit, store, update or share any information specified therein. This rule aims to ensure that the platforms identify and promptly remove misinformation, false or misleading content and material impersonating others, including deepfakes.

To counter the menace of misinformation owing to deepfakes, the advisory focuses on Rule 3(1)(b)(v) which explicitly prohibits deceptive or misleading information which, (i) misguides the recipient regarding the message’s source, (ii) deliberately spreads false information, or (iii) is flagged as fake by fact-check unit of the Central Government. The purposeful utilization of AI by the person deploying the AI means to create such content (such as deepfakes), is also construed as an attempt at impersonation, a practice explicitly prohibited under section 3(1)(b)(vi) of the IT Rules. As an effective deterrent, the Advisory mandates users to be informed about the potential legal consequences outlined in the Indian Penal Code, 1860, the IT Act, 2000 and other penal provisions applicable for violation of rule 3(1)(b). Furthermore, the intermediaries must ensure that their terms of service and user agreements, (i) state that the platform is obliged to report legal infractions to the relevant enforcement agencies, and (ii) shall be periodically notified to the user, at least once annually, during registration or login procedure as specified in clause (1), sub-clause (f) of Rule 3.

This Advisory is a follow-up to a series of communications and notices sent to the intermediaries asking them to follow the norms prohibiting the hosting, display or sharing of certain content as specified under the Rules. It also suggests taking measures while permitting advertisements pertaining to illegal loans, betting applications which can potentially mislead the users or lead to scams. To ensure compliance the Ministry will be closely observing the observation of these mandates. These ongoing monitoring and regulatory efforts demonstrate a proactive approach of the authorities to maintaining a secure internet landscape, for Indian users.

Please find a copy of the notification here.

This update has been contributed by Jitendra Soni and Neha Madan (Partners) and Ojaswini Mandhan (Associate).

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