Jyotsna JayaramPartner
Akshaya Parthasarathy Senior Associate
Karthik RaiAssociate
Key Developments
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Ministry of Electronics and Information Technology directs intermediaries to prevent deepfakes on their platforms
To address the growing concerns of risks associated with deepfakes, the Ministry of Electronics and Information Technology issued an advisory in November 2023 to social media platforms with at least five million users in India, requiring them to:
- exercise due diligence and reasonable efforts to identify information violating the law or user agreements,
- ensure that users do not post such content, and
- promptly remove and disable access to any such content once it is reported.
The advisory reiterated that intermediaries that do not adhere to these requirements will lose the safe harbour protection, which grants them immunity from any unlawful content shared on their platforms.
Subsequently, an advisory was issued to all intermediaries enabling third-party content on their platforms to (a) clearly convey the list of prohibited content to their users in the terms of service as well as when they register on the platform, log in, and upload or share content, and (b) inform users of the consequences of posting or sharing such content.
These advisories form part of the government’s urgent measures to combat deepfakes and the perceived role of intermediaries in this effort. Platforms that facilitate user-generated content should review their terms, content takedown policies, and user interface for compliance with these advisories, which largely reiterate the existing legal requirements in addition to imposing a few additional obligations on intermediaries to inform their users. The government is expected to observe intermediaries’ compliance with these advisories and determine whether these need to be crystallised in the form of amendments to the Information Technology Act, 2000 (IT Act) or attendant rules.
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Madras High Court overturns the blanket ban on online games in Tamil Nadu
In a decision that offers relief to online gaming companies, the Madras High Court read down the Tamil Nadu Prohibition of Online Gambling and Regulation of Online Games Act, 2022 (TN Online Gaming Act) to remove the complete ban on online games of skill, while allowing the state government to regulate such games.
The TN Online Gaming Act deemed online rummy and poker as games of chance and prohibited them from being offered in the state. Reviewing various precedents that determined that offline versions of rummy and poker are games of skill, the court held a complete ban on them to be unconstitutional.
This decision should be viewed in the context of similar and related determinations made by various other courts in India, such as the Karnataka High Court’s ruling striking down certain sections of a law that banned all stake-based online games and the Kerala High Court’s decision that online rummy played with or without stakes is a game of skill. Recently, considering the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, the Supreme Court directed the Andhra Pradesh High Court to examine the state-level ban on games of skill and the nature of online rummy. The Supreme Court is also due to hear appeals from Karnataka and Tamil Nadu challenging their respective High Courts’ striking down of their respective state-level gaming bans.
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Enhanced penalties for breaches under Aadhaar and information technology laws
The Jan Vishwas (Amendment of Provisions) Act, 2023 (Jan Vishwas Act) was passed by the Parliament in August 2023 to modify penalties under various key legislations. The Jan Vishwas Act is being notified in a staggered manner. In November 2023, provisions enhancing the penalties for contraventions under the IT Act and the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Aadhaar Act) were brought into force.
Notably, non-compliance with the intimation requirements under the Aadhaar Act or a violation of the cybersecurity directions issued by the Indian Computer Emergency Response Team (CERT-In) under the IT Act can attract penalties of up to INR 10 lakh (approx. 10,000 USD) and INR 1 crore (approx. 100,000 USD), respectively. The quantum of penalties is significantly higher following this amendment. While imprisonment has been done away with under the Aadhaar Act, certain offences under the IT Act can still attract imprisonment.
(To read our detailed update on the Jan Vishwas Act, click here.)
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Withdrawal of restrictions previously imposed on the import of laptops and other electronics
Owing to concerns expressed by various stakeholders, the restrictions announced for the import of laptops and certain other hardware devices into India (to read our previous update on this restriction, click here have been withdrawn and replaced with a contactless import authorisation system (IAS) effective 1 November 2023.
Companies importing information technology (IT) hardware into India will need to register the quantity and value of their imports to obtain this authorisation. The government is expected to gather data obtained through the IAS to “ensure a trusted supply chain” for hardware brought into India. Authorisation granted in this manner will remain valid until September 2024. The government has exempted the authorisation requirement in certain instances, including:
- import for captive usage by certain entities e.g., those operating in Special Economic Zones;
- import of input components such as spare parts; and
- import of a certain number of devices for research and development, testing, benchmarking, evaluation, and product development.
The government has indicated that import authorisation requests would not be rejected unless the applicant is placed in the ‘denied entity list’, e.g., if it has defaulted on export obligations. News reports suggest that over a hundred firms have already obtained authorisation under the new regime.
These developments indicate a simultaneous effort to promote the ease of doing business in the technology sector while also strengthening compliance obligations to ensure user consent and safety, particularly in the online space. In the coming months, developments in relation to emerging technologies may be expected, including further clarity on the regulation of intermediaries and the permissibility of various online real money games.
