Please find appended below Volume XIX of INDUSLAW's 'The Recap', a periodic round-up of the latest developments in Media, Entertainment and Gaming laws from India, authored by members of INDUSLAW's TMT Team. This edition covers legal updates from the month of November 2023 and throws light on inter alia the initiatives undertaken by the Government to tackle deepfakes, key highlights of the Draft Broadcasting Services (Regulation) Bill, 2023, recent directions to the OTT platforms and latest orders by the MeitY and courts in matters affecting a range of gaming intermediaries.
INTRODUCTION
'Necessity is the mother of invention', a widely used English proverb is not just an encapsulation of age-old wisdom but also a modern-day adaption of the profound teachings of the ancient Greek philosopher, Plato, who once wrote 'our need will be the real creator'. While this is true, Mark Wahlberg's wise words –'...somethings should never be invented' from the classic, 'Transformers: Age of Extinction' strikes a chord equally. Perhaps somewhere between the proverb and the dialogue is where we stand today, trying to draw a balance between the need to innovate on one hand and to curb the ill effects of evolving technology, on the other. Case in point - the growing use of Artificial Intelligence ("AI") and the dichotomy between digital replicas and deepfakes.
With new policies, directives and initiatives in place, November 2023 has been a critical month which has seen sincere and proactive measures being taken by Ministry of Electronics and Information Technology ("MeitY") to curb the menace of deepfakes in India. Additionally, the month has also witnessed changes in the Goods and Services Tax ("GST") regime all of which social media intermediaries and gaming intermediaries have had to imminently deal with respectively.
At the bottom of each of the measures and orders lies an underlying belief or rather a fact that the world is changing, and perhaps too rapidly for us to catch up on. Whether it's a race against humanity or a long run marathon, is a mystery for time to unravel.
With this thought, we bring to you the nineteenth edition of the Recap, outlining some insightful developments in the media and gaming space from November 01, 2023, to November 30, 2023.
MEDIA AND ENTERTAINMENT
Government takes initiatives to combat deepfake content on social media platforms
The MeitY on November 7, 2023, issued an advisory to significant social media and internet intermediaries, urging them to take stringent actions against deepfake content under the Information Technology Act, 2000 ("IT Act") and the IT (Intermediary Guidelines & Digital Media Ethics Code) Rules, 2021 ("IT Rules").
The advisory urged the intermediaries to exercise due diligence and undertake reasonable efforts to identify any misinformation or deepfakes. Under the IT Rules, intermediaries are required to proactively prevent users from hosting prohibited content and ensure its swift removal within the stipulated timeframe of 36 (thirty-six) hours, upon receipt of a report in this regard. The advisory also sets out that any non-compliance with these requirements will trigger the applicability of Rule 7 of the IT Rules, where the intermediary may end up losing its safe harbor protection under Section 79 of the IT Act.
Following the advisory, the MeitY held a meeting later in November, with the representatives of the internet intermediaries to deliberate upon potential solutions to tackle the concerns around AI and deepfakes, in particular. In the same meeting, MeitY identified four pillars around 'detection', 'prevention', 'reporting' and 'awareness', and urged the intermediaries to identify actionable items in relation to these pillars for further deliberation with MeitY in a follow-up meeting, which is yet to be held.
During this meeting, MeitY also committed to commence immediate work on drafting the necessary regulations to effectively curb deepfakes. Though no Standard Operating Procedures ("SOPs") were established in the said meeting contrary to expectations, some tentative guidelines are expected to be issued for interim regulation till such time that a framework is laid down for this purpose.
The Minister of State for Electronics & IT, Rajeev Chandrasekhar, also took note of non-compliance with the IT Rules by certain intermediaries and advised them to enhance awareness by issuing repeated reminders to the users against posting of deepfakes and also provided 7 (seven) days to intermediaries to align their terms of use with the requirements under the IT Rules. Reportedly, the government has further expressed its willingness to come up with new regulations having penalties for both creators and platforms hosting such deepfakes with a specific focus on measures such as watermarking generative AI content, detection of deepfakes, regulation of data bias, among others.
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