AI In The Spotlight: Insight’s From MeitY’s Latest Advisory – New Technology

The Ministry of Electronics and Information Technology
(“MeitY“), on March 1, 2024, issued an
advisory for all intermediaries under the Information Technology
Act, 2000 (“IT Act“) and Information
Technology (Intermediary Guidelines and Digital Media Ethics Code)
Rules, 2021 (“IT Rules“). The advisory
is in continuation of the advisory dated December 26, 2023, issued
by the MeitY addressing some of the growing issues surrounding
misinformation through deepfakes. The MeitY, while pointing out
that intermediaries are failing to carry out their due diligence
obligations as stipulated under the IT Act and the IT Rules,
advised all intermediaries and platforms which use and host
Artificial Intelligence (“AI“)
systems, to comply with the following obligations:

1. Use of AI Models

Through the use of AI models, Large Language Models
(“LLMs“) and/or generative AI models,
intermediaries must undertake steps to ensure that users do not
upload any unlawful content as set forth in the IT Act or violate
any provisions of the IT Act. Furthermore, intermediaries must
clearly inform the users about the consequences for hosting such
unlawful content through user agreements.

The advisory had also included an enormously contentious
provision over the use of under-testing and/or unreliable AI
models, LLMs and generative AI models. It was stipulated that the
use of the aforementioned technologies and its deployment on the
Indian internet should be done only with the explicit approval of
the Central Government. Additionally, provision of such
under-testing models to the citizens should accompany a
‘consent popup’ to inform users about the inherent
fallibility of the output of the AI system. This provision was met
with immense backlash from industry stakeholders especially from
start-ups who claimed that this could potentially be detrimental to
AI innovation in the country.

In response to the immense retaliation, on March 15, 2024, the
MeitY reportedly issued a revised advisory to 8 (eight) of the
largest intermediaries namely Facebook, Instagram, WhatsApp,
Google/YouTube, Twitter, Snap, Microsoft and ShareChat. The revised
advisory toned down the language of the March
1^st advisory and clarified that the provision on
government approval required to provide under-testing and/or
unreliable AI models to the general public would only be applicable
to these 8 (eight) platforms.

2. Prevention of Discrimination and Bias

As argued by several industry experts and as recently
demonstrated by Google’s generative AI model – Gemini,
AI technology models are still susceptible to allow certain bias
and discrimination to affect its statistics and predictions and
ultimately provide a biased output. Through the advisory, the MeitY
has called all intermediaries to ensure that no AI models or LLMs
that permit bias or discrimination are used. The ministry has also
emphasized on the potential consequences of a discriminate AI
system on a country’s electoral process. In this regard, the
IT Secretary Mr. S. Krishnan had said that the advisory was issued
primarily because AI tools had differing outcomes depending upon
the territory from which it is used, and that this aspect could
become a significant concern ahead of the upcoming general
elections in the country. Consequentially, the advisory had
directed intermediaries to ensure that their AI models do not
threaten the integrity of the electoral process of India.

Moreover, intermediaries and platforms that use their computer
resources to provide audio-visual content were advised to ensure
that content which could potentially be deemed to be misinformation
or deepfakes are not hosted and displayed on the platform. Any
content generated from such computer resources and hosted on a
platform must either be labelled or embedded with a permanent
unique metadata or identifier in order to identify where such
information or content has been generated from.

While the IT Minister, Mr. Ashwini Vaishnaw clarified that this
advisory is not meant to be a regulatory framework, but rather a
set of guidelines for entities to test their AI products before
launching it, there is still uncertainty on whether the advisory is
legally binding, as intermediaries have been reminded about their
due diligence obligations in order to avoid prosecution under the
IT Act and obtaining safe harbour protection under the IT Act.

In conclusion, the advisory issued by the MeitY regarding the
use of AI models by intermediaries marks a significant step towards
addressing concerns surrounding misinformation and bias in digital
content. While the revised advisory aims to strike a balance
between regulatory oversight and fostering innovation, it has
sparked debated within the industry. Future developments in this
area will undoubtedly shape the trajectory of AI governance and
innovation in India, as stakeholders navigate the complexities of
ensuring compliance with regulatory standards while pushing the
boundaries of technological advancement.

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