The Ministry of Electronics and Information Technology has issued draft amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”), aimed at addressing the emerging challenge of synthetically generated and AI-manipulated content. The policy objective, i.e., improving transparency and accountability in the digital ecosystem, is entirely justified. However, the method adopted raises foundational questions about the scope and limits of delegated rule-making under the Information Technology Act, 2000 (“IT Act”), that warrant careful deliberation before the draft is finalised.
The Outer Limit of Rule-Making Power Under the IT Act
Section 87 of the IT Act empowers the Central Government to frame rules for carrying out the provisions of the Act. Clause (2)(zg) in particular authorises the Government to prescribe “guidelines to be observed by intermediaries under sub-section (2) of Section 79”. This enables the executive to operationalise safe-harbour, i.e., to articulate due-diligence procedures. What it does not permit is to alter or expand the substantive content of Section 79 itself. Any rule that substantively changes what qualifies or disqualifies an intermediary from immunity risks amounting to legislative amendment by executive action, which falls outside the permissible scope of delegated authority.
What the Draft Amendment Actually Does
The proposed amendment introduces the concept of “synthetically generated information” and mandates intermediaries to ensure that such content carries a visible label or embedded metadata identifier and that these identifiers cannot be removed or altered. For significant social-media intermediaries, the burden is heavier: they must require users to declare whether uploaded content is synthetic, verify the accuracy of those declarations through automated or technical means, and display appropriate notices identifying such content.
In practice, intermediaries are being directed to verify, classify and even modify user-generated content which is a significant shift away from the passive, conduit-like role that Section 79 currently envisions.
The Attempted Safe-Harbour Assurance
A new proviso is proposed under Rule 3(1)(b), stating that removal or disabling of access to synthetic content will not amount to violation of Section 79(2)(a) or (b). The intention is clear: reassure intermediaries that compliance with these proactive duties will not result in loss of safe-harbour.
Yet this mechanism introduces a doctrinal problem.
The Legal Question that Arises
Section 79(2) grants safe-harbour to intermediaries only where they do not initiate the transmission, select its recipient, or modify the information being transmitted. This requirement of neutrality is a statutory safeguard designed to preserve the intermediary’s passive character, it is not a matter left to executive discretion.
The draft amendment, however, directs intermediaries to undertake active verification, labelling and modification of content including inserting identifiers, and disabling content when those identifiers are absent. It then proceeds to state by, way of a rule, that such intervention “shall not amount to a violation” of Section 79(2).
This goes beyond procedural guidance. It effectively redefines the scope of conduct that Parliament has expressly identified as disqualifying for safe-harbour and does so through subordinate legislation rather than amendment of the parent statute. Such an approach raises a serious concern of substantive overreach.
Why This Matters
The result is an internal inconsistency:
- the Act conditions immunity on inaction,
- the Rules demand intervention and then declare it harmless.
Such reversal of statutory architecture cannot safely be done through subordinate legislation. If Parliament intends to modernise Section 79 to enable responsible proactive moderation, that change must flow from primary legislation, not executive rule-making.
Need for Deliberation Before Finalisation
As the draft is open for consultation, this precise concern merits deeper legal review. Rule-making under Section 87 must preserve, not rewrite, the statutory balance that Section 79 was designed to maintain. Amendments of this nature, which affect the core neutrality premise of safe-harbour, should be enacted through parliamentary debate rather than through subordinate Rules; otherwise, they risk being challenged as ultra vires the parent Act and creating uncertainty in the very framework they are intended to strengthen.
Conclusion
The objective of curbing synthetic and AI-generated misinformation is both necessary and timely. The proposed amendments represent a positive and proactive step toward enhancing accountability and enabling quicker takedowns of misleading or deceptive content online.
That said, certain aspects, particularly those expanding intermediary obligations while reaffirming safe-harbour protections under Section 79, may benefit from further deliberation to ensure they remain within the bounds of delegated legislation and preserve the balance envisaged by the IT Act. With thoughtful refinement, the framework could effectively strengthen India’s response to AI-driven misinformation while maintaining legal coherence and intermediary protection.
