On April 6, 2023, the Central Government notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 in relation to Online Gaming and fact-checking of false news or information by the unit of the Central Government. Earlier, in the draft amendment, it was the Press Information Bureau (PIB) that was to do the fact check. But the new amendment has omitted the PIB and replaced it with a “Unit of Central Government.”
The Amendment related to fact-checking has been made to Rule 3(1)(v)(b) of the IT Rules 2021. The new amendment requires social media intermediaries, as one of the requirements of due diligence, to inform its rules and regulations, and privacy policy to the user and to make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that is identified as fake or false or misleading by fact check unit of the Central Government in relation to the business of the Central government.
Earlier, Article 21 Trust had submitted detailed comments and concerns pertaining to the proposed (now notified) Amendment Rules of 2023 to the Department of Telecommunications, Government of India.
Our main concerns have been summarised below:
The proposed amendment to the IT Rules under Rule 3(1)(v)(b) is antithetical to the idea of free speech and fundamental rights related to freedom of speech and expression enshrined under Article 19 of the Constitution of India. At present no specific legislation defines what is fake news or misinformation. The IT (Amendment) Rules 2023 are also silent on this issue. With no definition of what constitutes “fake” or “false” information, the Central Government will have unrestricted and unlimited power to declare speech that it finds uncomfortable, critical of its actions, or inimical to its own interests, as fake and hence prohibited. This we have witnessed in the past when PIB flagged several media reports as fake only later to be turned out as true and genuine.
Another important aspect is that fake news or misinformation is not one of the grounds for reasonable restrictions provided under Article 19(2) of the Constitution of India. The government simply can not curtail any information or suppress freedom of speech and expression under the garb of treating it as fake unless there is a specific law dealing with the issue and fulfilling the mandate of Part 3 of the Constitution.
The proposed amendment also opens up avenues for the harassment and arm-twisting of the intermediaries who may be held liable under Rule 7 of the IT Rules, 2021 if they did not comply with the Government’s diktat to take down content categorised as fake by its fact check unit.
The amendment is marred by the excessive delegated legislation and that has led to them being challenged before the various High Courts in India. The Madras High Court in one such case in W.P. Nos.13055 and 12515 of 2021 by order dated 16.09.2021 observed that, “3……prima facie, there is substance in the petitioners' grievance that an oversight mechanism to control the media by the government may rob the media of its independence and the fourth pillar, so to say, of democracy may not at all be there.”
The notified rules have purposefully omitted PIB from the provision after receiving criticism for the same as the PIB is not an agency independent of the Government of India. It is now to be seen whether the government constitutes any separate unit for fact-checking or whether PIB itself will be empowered to carry out this task. There is also no clarity on what mechanism PIB follows to carry out its fact-check work, and what are the parameters to determine which news is fake and which isn’t. In the recently concluded Budget Session of Parliament, the government was also asked what independent oversight mechanism it has in place to review information classified as fake by PIB / Government agency, but it chose to evade this question and gave no response. In absence of a publicly auditable mechanism to define and determine fake news, PIB or any other fact-checking unit of the Government cannot become the sole arbiter of truth.
To read our full statement, kindly click here