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On 1st March, 2024, the Ministry of Electronics and Information Technology (MeitY) issued advisory which, it declares to be in continuation of its advisory issued on December 23, 2023. The new advisory claims to have issued pursuant to MeitY noticing that intermediaries or platforms are failing to undertake due diligence under Information Technology(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021(“IT Rules”).

In addition to the guidelines issued in earlier advisory, MeitY advised for further compliances by intermediaries and platforms including:

1.???? Use of AI model/generative AI does not permit its users to host, display, upload, modify, publish, transmit, store, update or share any unlawful content;

2.???? Restriction on any bias or discrimination or threaten the integrity of the electoral process including the use of AI;

3.???? Use of under-testing/unreliable AI model and its availability to the user must be done with the explicit permission of Government of India and be deployed only after appropriately labelling the possible and inherent fallibility or unreliability of the output generated. Further, ‘consent popup’ mechanism may be used to explicitly inform the users about the possible and inherent fallibility or unreliability of the output generated;

4.???? Informing users through terms of use or EULA about the consequence of dealing with the unlawful information on the platform including disabling access or removal of non-compliant information, suspension or termination of access rights and punishment under applicable laws.

The advisory further addresses the issue of creation, generation, modification of a text, audio, visual or audio-visual information and subsequent potential usage in the form of mis-information or deepfake, wherein such information be labelled or embedded with a unique identifier or metadata for identifying the computer resource of intermediary, user of such intermediary and further information. On 4th March, 2024, Mr. Chandrasekhar announced that advisory issued on 1st of March shall not apply to start-ups and only to significant platforms.

To begin with, lets understand the meaning of “Intermediary” and “Platform” as per the applicable laws. Section 2(w) of the Information Technology Act, 2000 defines Intermediary with respect to particular electronic records, as any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online auction sites, online market place and cyber cafes. As far as the interpretation of intermediary in respect of Ministry’s reply stating that the new advisory does not apply to start-ups seem misplaced as the definition does not include any reference to the size of the entity and whether it’s a start-up. Since the IT Act and corresponding rules are silent on the meaning of platform and hence, considering the obligation and liability proposed, the reference was made to the Consumer Protection (E-commerce) Rules, 2020 which defines platform to be an online interface in the form of any software including a website or part thereof and applications including mobile applications. While it has been stated that the contents of the advisory are not binding but it is not how the way it has been drafted.

It has not been clarified that how the permission of Government of India is to be procured and what is the timeline and stage of submission for seeking approval as the language is generic in nature. I feel that there is some confusion in drafting these guidelines as AI models for example, chatbots, allow chats between user and a bot and the content of the same is not open to public. I feel these restrictions are very broad and subjective in nature and requires deliberation and clarity.

Link to the notification: Advisory_MeitY_01Mar2024 final ( regmedia.co.uk )

Photo Reference: DALL.E 2