The Ministry of Electronics & IT on the 6th of April 2023 notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, amending the IT Rules, 2021. Carefully sandwiched between the seemingly innocuous lengthy amendments relating to online gaming is the controversial addition to the Rules pertaining to fake or misleading news.
As a quick recap, the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules of 2021 make it mandatory for intermediaries, including YouTube, Instagram, Twitter and the like to adhere to certain guidelines in order to retain their protection under the safe harbour provision—section 79 of the IT Act, 2000—which provides legal immunity to intermediaries for unlawful third party content. These Rules by themselves had raised concerns regarding violations of freedom of speech and expression and the right to privacy. This was primarily because of the lack of procedural safeguards in government and law enforcement agencies requesting information from the intermediaries, and the consequent fear of the government acting arbitrarily.
The IT Amendment Rules 2023 adds to the fear as it authorises the government to constitute a Fact Check Unit and flag what they believe is “fake or false or misleading” information in respect of any business of the Central Government. This would then be informed to the intermediary for a takedown of such information.
The apprehension that this Fact Check Unit will throttle any form of dissent against the government on the internet is not misplaced. Even on the face of it, a government instituted Fact Check seems to go against the internationally accepted standard of fact check units being “free from partisanship” and bias. Further, past experiences with PIB Fact Check give enough reason to be apprehensive.
The PIB Fact Check, present on Instagram, Facebook, Twitter and Telegram, was launched by the Ministry of Electronics and IT in December 2019 with its objective “to act as a deterrent to creators and disseminators of fake news & misinformation and to provide people with an easy avenue to report suspicious and questionable information pertaining to the Government of India for fact-checking”. In the last three years, PIB Fact Check has indisputably flagged several fraudulent websites, SMSs and social media accounts pretending to be by the government and duping people. However, it has also flagged numerous news reportings by the media and journalists critical of the government as “false” or “misleading” in single-line statements without attempting to refute the claim in any manner. Therefore, essentially, PIB Fact Check allows a government-launched body to in turn fact-check reports by a responsible media fact-checking the government, reinstating the stance of the government and allowing no place for contesting the claims of the government or criticising it.
That is why when the draft amendment was introduced in January this year, the Editors Guild of India (“EIG”) sought its removal. They said, “…the determination of fake news cannot be in the sole hands of the government and will result in the censorship of the press.” Despite this, the only change made in the current amendment over that draft has the removal of reference to PIB. The central government claims that they will appoint a fresh fact-check body. Post the recent amendment being notified, the EIG voiced concerns regarding there being no mention of a governing mechanism behind such a fact-checking unit, nor provisions for judicial oversight or the right to appeal. There seems to be no definition of what constitutes false or misleading information, making the government the sole arbitrator of the same.
In response to these concerns, the Minister of State for Electronics and IT said that there is no obligation on the intermediaries to take down the content flagged off by the PIB if they conclude that the fact-check report is erroneous; but in that case, they will lose their safe harbour protection, and then the matter will be taken to a court of law. This statement by the Minister looks over the fact that the intermediaries, due to the new Rule, will rather take down the flagged third-party content than go all the way to the courts to defend it in the courts, draining them of time and resources.
As a welcome development, the Bombay High Court recently directed the Centre to file an affidavit in response to a petition filed by stand-up comedian Kunal Kamra challenging the amendment. The counsel for the petitioner argued that the impugned rule would create a “chilling effect” on the freedom of speech and expression of all citizens of this country, especially those who post comments and videos on political developments as a profession.
In times where there are frequent allegations against the government of using all three pillars of democracy to weaken dissent in any form, dissent on online spaces by media outlets remains one of the very few ways democracy continues to breathe (hardly) in this county. If fact-check units are allowed to facilitate the taking down of criticism, and aid in the building of a single and uncontested narrative propagated by the government, even in these online spaces, the government would have taken another major step in the direction of slowly killing a democracy.
This article is written by Khushi Singh (4th year).
