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FACT OF THE MATTER: ANALYSIS OF THE GOVERNMENT FACT CHECK UNIT UNDER IT (AMENDMENT) RULES, 2023

INTRODUCTION

With the growth in the popularity of social media, there has been a rapid increase in the amount of fake news. As the speed and access of the internet increases so does the spread of unreliable, unverified claims on a multitude of issues. Fake news acts as a divisive force in society and intensifies social conflict. It leads to the formation of prejudices as it tends to manipulate one’s beliefs and attitudes. In many incidents around the world, fake news has also led to violence and crimes.

To address this issue the government has proposed the establishment of a fact-check unit that will flag false online content related to the Union Government. On 6th April 2023, the Ministry of Electronics and IT notified various amendments[1] to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The amendment places an obligation on social media platforms to refrain from hosting, publishing or sharing false information. This is an attempt made by the Government to curb the menace of fake news.

FACT-CHECKING MECHANISM UNDER ITS RULES 2023

One of the main features of the IT (Amendment) Rules, 2023 is the fact-checking of “false, fake or misleading” information related to any business of the Union Government under Rules 3(i)(II)(A) and (C). Social media content would be scrutinized by government-authorised fact-check units. If the information is identified as fake, the social media intermediaries will be required to take down such posts[2].

Moreover, internet service providers will have to block URLs to the content. Failure to take action against such fake or misleading content on the part of social media platforms may result in them losing their safe harbour protections. Safe harbour protection under Section 79[3] of the IT Act protects online platforms from being held accountable for the content posted on them by their users. Therefore, it aims to enhance the accountability of social media platforms and ensures that they do not become a medium for the spread of fake news.

CRITICISMS OF THE STEP

Since the time of its announcement, the amendment has faced criticism from journalists, opposition and several advocates of digital rights. Internet Freedom Foundation, a non-government organization that defends online freedom has raised serious concerns about the undefined and vague grounds for blocking online content[4]. The Editors Guild of India stated that the amendment would adversely affect press freedom[5].

IMPLICATIONS OF THE FACT-CHECK UNIT: CRITICAL ANALYSIS

The fact-check unit increases the responsibility of intermediaries by obligating them to take “reasonable measures” to prevent users from spreading misinformation. The main motive behind the provisions of fact-checking is to minimize fake news, however, there are apprehensions that it will result in online censorship. It places wide discretionary powers in the hands of the Government. Serious concerns are being raised about its impact on free speech on the internet.

IT Rules 2023 does not define the terms “fake, false or misleading” based on which fake news would be identified. These terms could be used arbitrarily to block any information on the internet without lawful justification. The vague grounds for identifying fake information are in contravention of the Supreme Court’s ruling in the landmark Shreya Singhal case. The Court struck down Section 66A[6] of the IT Act as it infringed upon freedom of speech and expression. The Section restricted free speech based on vague and open-ended grounds. In this case, it was held: “When there is no clear guidance on the matter, any section in a law which creates an offence and which is vague must be struck down as being arbitrary and unreasonable.”[7]

Freedom of speech and expression can only be restricted on the grounds mentioned under Article 19(2)[8] such as the security of the state, public order and others. Section 69[9] of the IT Act also mentions the same grounds for blocking public access to any information. The grounds under the new IT Rules provide new dimensions for restricting speech and expression on the internet which are completely distinct from those mentioned in the Constitution and the IT Act. The Supreme Court has also held that the restrictions under Article 19(2) are exhaustive. Apart from these, no further restrictions can be imposed on free speech[10].

These broad and vague restrictions have a chilling effect on free speech and expression[11]. They could lead to self-censorship as people will refrain from expressing their political opinion on the internet. They may also jeopardise the freedom of the press. A major portion of daily news is posted on online platforms. These rules would give the government a free hand to characterise any news which is unfavourable to its interest as false or misleading and have it removed through the fact-checking unit.

Under these rules, the government will have unfettered power to label any information as fake and remove it from the Internet. The State would have absolute discretion to determine the truth related to online information. This means the government has sweeping powers to take down any content which is critical about it. Fact-Check Unit can be used as a tool to curb dissent and criticism of government policies.  The contours of the government’s regulation are also unclear as the fact check unit can inspect a broad spectrum of information related to the business of the Government. The scope and extent of the fact check unit is not known as “business of the government” is not defined and includes a plethora of activities undertaken by the government.

The rules violate the principles of natural justice as the government itself is the complainant in a case of false information and is also the judge in ascertaining whether the information is true or not. There is no stipulation of any right to appeal by the intermediaries or the publisher of the content which is declared as fake. Thus, denying him the right to be heard. There is no clarity as to the governing mechanism of the fact-checking unit. The absence of judicial oversight creates doubt about the fairness and impartiality of the fact-checking process.

The intermediaries have no other choice but to take down any content which the fact check unit flags as fake or they shall risk losing their legal immunity under Section 79 of the IT Act. Clause 3 of this section provides that safe harbour will be lost if the intermediary fails to remove any material posted on it to commit an unlawful act. The Supreme Court has ruled that the act must be related to the subject matter of Article 19(2)[12].

CONSTITUTIONAL VALIDITY OF THE FACT -CHECK UNIT

A petition has been filed in the Bombay High Court by comedian Kunal Kamra in April 2023 challenging the constitutional validity of the said rules on the grounds of violation of Articles 14[13], 19(1) (a)[14] and 19(1) (g)[15] and being ultra vires with the IT Act. The petitioner engages in political satire on the Government’s action as a part of his profession and feels that the said rules would obstruct his creative content[16]. The Editor’s Guild of India and the Association of Indian Magazines filed a writ petition in June 2023. The government stayed the establishment of the fact-checking body till July[17].

The Court pointed out that the term “misleading” has wide connotations. It is a matter of perception. Furthermore, the material posted online may not strictly be labelled as true or false. They also raised questions about the meaning of “government business”.

The government’s sole discretion in labeling any online content false or misleading places severe restrictions on freedom of speech and expression on the internet which has been recognised as a fundamental right in Anuradha Bhasin’s case. To be constitutionally valid, these restrictions would have to be tested on the anvil of reasonableness and proportionality. This means that there must be a rational nexus between the restrictions imposed and the object sought to be achieved and they must be the least restrictive[18]. The judicial scrutiny of the rules is continuing in which the Court is examining all these aspects.

CONCLUSION

Fake news is like a spark that burns and destroys the entire forest. The period of the Covid-19 pandemic taught us a lesson about the horrors of misinformation. There is not an iota of doubt that the government must take active steps towards the elimination of fake news. However, these steps must not be at the cost of the fundamental freedom of speech and expression of the citizens. Political discourse by citizens is an essential feature of a democracy. In such a scenario scrutiny of online content must be done by an unbiased body. The fact-checking unit is a positive measure to deal with fake news on the internet but it needs safeguards to prevent its possible misuse for suppressing expression and dissent.

Author(s) Name: Ananya Tiwari (University of Lucknow, Lucknow)

Reference(s):

[1] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023

[2] Ibid

[3] Information Technology Act 2000, s 79

[4] Tejaswi Panjiar, Prateek Waghre ‘IT AMENDMENT RULES, 2023 ARE A NIGHTMARE, DRESSED LIKE A FACT CHECKING DAYDREAM’ (Internet Freedom Foundation, 18 July 2023) <https://internetfreedom.in/public-brief-it-amendment-rules-2023/> accessed 25 July 2023

[5] Suraksha P. ‘WITHDRAW DRACONIAN AMENDMENTS TO IT RULES: EDITORS GUILD TELLS GOVT’ (Economic Times, 18 July 2023) <https://economictimes.indiatimes.com/tech/technology/meity-giving-itself-sweeping-powers-to-determine-what-news-is-fake-or-false-editors-guild-of-india/articleshow/99316978.cms> accessed 25 July 2023

[6] Information Technology Act 2000, s 66A

[7] Shreya Singhal v Union of India (2015) AIR 1523 (SC)

[8] Constitution of India 1950, art 19(2)

[9] Information Technology Act 2000, s 69

[10] Kaushal Kishore v. State of U.P W.P. (Crl) No 113/2016

[11] Shreya Singhal (n 7)

[12] Ibid

[13] Constitution of India 1950, art 14

[14] Constitution of India 1950, art 19(1)(a)

[15] Constitution of India 1950, art 19(1)(g)

[16] Kunal Kamra v. Union of India W.P. (L) No 9792/ 2023

[17] Swati Deshpande ‘EDITORS GUILD CHALLENGES CENTRE’S FACT CHECK RULE’ (The Times of India, 18 July 2023) <https://m.timesofindia.com/india/editors-guild-challenges-centres-fact-check-rule/articleshow/100829416.cms> accessed 25 July 2023

[18] Anuradha Bhasin v Union of India [2020] 3 SCC 637