“Whether AI developers, particularly in the context of genAI platforms, whether they are intermediaries or not… the intent of the government, it appears, is that they should be, and that’s how probably the rules have been written. But in my own opinion, they are not. Many of them will not qualify the definition of intermediaries. And hence, the primary purpose of this rule may get jeopardised,” said Rakesh Maheshwari, Former Senior Director and Group Coordinator (Cyber Laws and Data Governance) at the Ministry of Electronics and Information Technology (MeitY), during MediaNama’s discussion ‘Regulating for Deepfakes in India’ held last week.
Maheshwari was responding to a wider debate on how the draft amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, classifies platforms that generate or modify content using AI.
For context, the amendment seeks to legally define synthetically generated information, mandate visible labelling and embedded metadata, require user declarations verified by Significant Social Media Intermediaries (SSMIs), and extend due diligence obligations to intermediaries that host or distribute synthetic content.
[Note: While the legal panel took place under the Chatham House Rule, attribution is permitted for Rakesh Maheshwari. Other comments from this panel below are reported without attribution. The business panel cited later in this article chose to waive the rule entirely and is fully attributable.]How does the law classify intermediaries today?
A participant explained that although the definition of “intermediary” under Section 2(w) of the IT Act is broad, the safe harbour under Section 79 applies only when the intermediary acts as a communication system or neutral conduit.
If a platform is generating or modifying the content rather than merely transmitting it, it may fall outside the scope of safe harbour.
One participant noted, “If you are only doing a very minimal assistive function, maybe you can enjoy safe harbour. If you’re generating, it becomes difficult to fit the platform under 79 because it may not meet the functional test.”
What happens when AI is generating the output?
MediaNama Founder and Editor Nikhil Pahwa pointed out that generative AI workflows often involve the same user on both ends:
“So a user is on both ends of that. So it’s not an intermediary,” Pahwa said.
A participant agreed:
“For lack of any other better framework, this is what is being used. But strictly under 79, it is difficult to fit,” the participant noted.
Who Applies Labels and Traceability Requirements?
Alongside the definitional debate, participants discussed who would be responsible for applying labelling and traceability, whether it would be the AI developer, the platform hosting the content, or the ad network.
A participant argued that AI developers do not meet the legal definition of an…
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