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As governments around the world are passing laws in the name of fact-checking it appears that these laws end up being used to muzzle free speech and expression, blocking the information which is critical of the governments. In this piece, we explore the laws that have been passed under various jurisdictions such as Singapore, France, Brazil, Russia, Turkey etc. to curb the spread of misinformation and fake news. We will also look at the implications they have on free speech and expression and why bringing a similar law in India would undermine the citizens’ right to free speech. In January, 2023, the Government proposed some amendments to the IT Rules, 2021 in relation to online gaming and also due diligence by an intermediary under rule 3(1)(b)(v) and invited consultation and comments for the same. The proposed amendment under Rule 3(1)(b)(v) empowered the Press Information Bureau (PIB) and now the Fact Checking Unit (FCU) of the Government of India to fact-check any news in relation to the business of the Central Government. Article 21 Trust participated in this consultation process and submitted detailed comments and concerns (which can be read here) highlighting that the amendment to the Rules empowering the Central Government, inter alia, has chilling effects on free speech, goes beyond the scope of IT Act and marred with excessive delegated legislations.
In the meanwhile, as per several reports, the Government of India is also considering bringing a provision under the Digital India Bill to make it mandatory for fact-checkers to have themselves registered with the Central Government. Recently, the Karnataka State Government has also announced the creation of a “fact-checking unit” within the state, however, the IT minister of the state Priyank Kharge informed that the existing framework would be followed and all actions taken by the unit would adhere to relevant legal frameworks, including the IT Act 2000, IT Act amendments 2008, the Indian Penal Code, and the Disaster Management Act 2005
The Contested and Controversial IT Rules
In 2021, the Government of India notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Intermediary Guidelines) with the stated aim of increasing the accountability of social media platforms and preventing their abuse and misuse. The rules were notified under Section 87 of the Information Technology Act 2000 and replaced the Information Technology (Intermediaries Guidelines) Rules, 2011. The legality of the rules has been challenged on the grounds of being violative of fundamental rights and ultra vires the IT Act. The Madras High Court in the case of Digital News Publishers Assn. v. Union of India 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 Bombay High Court in the Agij Promotion of Nineteen One Media Pvt. Ltd. & Ors. Versus Union of India & Anr. in Writ Petition (L.) NO.14172 of 2021 while staying the sub-rule 1 and 3 of rule 9 of Rules of 20211, has categorically observed that Rules 9(1) and (3) are prima facie beyond substantive powers under the IT Act.
The Government notified the amendments to the IT Rules, 2021 on April, 6th, 2023, and the Rules empowering the Government to fact check were subsequently challenged by standup comedian and satirist Kunal Kamra, and later by Editors Guild of India before the Bombay High Court on the ground that the Impugned Rule is manifestly arbitrary, as they entail the central government acting as a judge and prosecutor in its own cause, thus violating one of the most fundamental principles of natural justice. The Association of Indian Magazines filed another petition assailing the rule. The petitions now will be heard and disposed of together. As per the reports the Government, on 27th April 2023 submitted before the HC that the FCU contemplated under the Rule shall not be notified. On 22nd August 2023, the High Court ordered that the FCU shall not be notified till 3rd October and the Government will argue the case on 26 and 27 September 2023.
The Bombay High Court on 31st January 2024, delivered the split verdict. Justice Neela Gokhale upheld Rule 3(1)(b)(v) while Justice Gautam Patel struck it down. Justice Patel recognises that the impugned rule can validly curtail free speech under Article 19(2) if false information amounts to incitement. However, the said rules go beyond the mandate of the said Article and may restrict the lawful speech therefore has no nexus with a state interest under 19(2). However, Justice Gokhale observed that false speech would not be free speech under 19(1) and that the right to free speech does not include the right to abuse one another. As Vasudevadasan points out it is problematic because nothing in the text of Article 19(1)(a), which simply provides for the “freedom of speech” suggests that any speech, let alone false speech, does not constitute free speech. And the Constitution itself identifies false speech such as defamation as grounds to restrict speech but it is provided under 19(2).
The case will now be heard by the third judge, till then the government has informed the Court that the rules shall not be notified.
Laws related to fake news in different Jurisdictions:
In June 2017, the Home Minister of Singapore announced that the State might bring a law to tackle fake news as it has serious consequences for individuals and for society. In June, 2019 Singapore brought the Protection from Online Falsehoods and Manipulation Act (POFMA) which was made effective from October 20192 to curb misinformation and false information. From its inception, the law has been marred with controversy for having provisions enabling access by the State to private chat groups on OTT platforms.
The definition of false information under section 23 is ambiguous leading to wide interpretations. Section 10 of the Act empowers any minister to issue directions to disable or correct any information which he views as false or hate speech, enabling misuse of power. Exemption to certain persons by the Minister from the law is also seen as a concerning issue.4 The law imposes a fine and a jail term on people for violation of the provisions5. However, the law was criticized for curbing free speech and being invoked against people or publications criticizing the government or its policies. In October, the Highest Court of Appeal of Singapore while upholding the constitutionality of the law held that the assessment by the Minister is subject to a final determination by the court as to whether or not it is correct
Russia, in 2019, introduced a law criminalising the distribution of “fake news” that “disrespects” the government, its institutions, state symbols and the constitution, by individuals and online media. In 2020, new articles 207.1 and 207.2 to the criminal code were added to impose grave liability for knowingly spreading publicly significant fake news about the Coronavirus. And in March 2022, a new amendment was made to Article 207.1 and a provision for the penalisation of those spreading false news to discredit armed forces was brought in. The law was termed as curbing and muzzling the free speech in Russia and it was brought in to quell the mounting dissent against Russian President Vladimir Putin’s excesses in Ukraine.
France in November 2018 passed a law relating to the Fight against the manipulation of information. The law was passed in the wake of the French Presidential Elections. The law allowed the CSA, the French national broadcasting agency, to order the suspension of foreign television channels if they deliberately disseminate false information. It empowered the Judges to order the immediate removal of fake news. The law prescribed that the violation of the provisions of the article is punishable by one year’s imprisonment and a fine of 75000 euros. The law, however, was criticised for creating thought police and having a monopoly on truth and mass diffusion.
Turkey passed the Disinformation Law in October 2022. The law defines the term misinformation vaguely and was seen as a serious threat to the free press and speech as it was passed just before the Presidential elections of 2023. Article 29 of the law is concerning in relation to free expression. It introduced prison terms for disseminating misleading news and made a provision of punishment of three years. The critics and the main opposition party dubbed it a censorship law and some described it as an evolution of the Government’s censorship strategy. In February this year, a journalist was sentenced under this new law for ten months.
Just like any other nation, Brazil has also been grappling with fake news and misinformation. The law related to fake news was introduced in 2020, however, for three years it remained stalled and has not been passed. The process was sped up and it was again discussed in April this year. If passed, it would place severe new restrictions on what social networks can promote online. The Bill also binds the platforms that spread “untrue facts.” The law would not be limited to Facebook but would also cover WhatsApp, Instagram, Google etc. The biggest problem with the Bill as pointed out is that it explicitly exempts lawmakers, and gives them sweeping immunity for online speech thus giving them a free pass to spread fake news in the name of Parliamentary immunity.6 On June 21, 2023, a Brazil-based think tank demanded that the accountability of a regulatory body should be maintained in draft bill 2630, to achieve the best possible regulation of digital platforms in Brazil.
Concerns surrounding the IT Rules on FCU
Since the amendment and insertion of the rule related to FCU in the IT Rules, 2021, concerns have been raised against it and it has been termed as censorship by the government under the guise of fact-checking. Its far-reaching consequences on freedom of speech and expression have been highlighted in the points below.
The newly amended rule has implications for free speech and empowers the Central Government to act as judge in its own case. With no definition of what constitutes fake or false, the Govt. has given itself the unbridled power to declare anything that it finds uncomfortable and critical of its actions as fake. And there have been instances, where even genuine news was labelled as fake by PIB in the past7.
The Supreme Court in Shreya Singhal v. Union of India, (2015) 5 SCC 1 held that any order for blocking access to information must conform to the grounds enumerated in Article 19(2), and that does not include truth or falsity of the statement. The amendment is beyond the scope of reasonable restriction enumerated under Article 19(2) of the Constitution of India and the IT Act, 2000. The amendment to the IT Rules in relation to fact-checking does not meet the stringent requirements of either Article 19(2) of the Constitution or Section 69 of the IT Act 2000.
The Rules are vague, over-broad, and constitute unreasonable restrictions to freedom of speech and expression under Article 19(1)(a) of the Constitution, by making the State the sole arbiter of truth or falsity of speech. Kartar Singh v. State of Punjab (1994) 3 SCC 569, reiterated in Shreya Singhal v. Union of India, (2015) 5 SCC 1 has held that “It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined.”
While staying the operations of Rules 9(1) and (3) of the IT Rules, 2021, the Bombay High Court noted that for the proper administration of the State, it is healthy to invite criticism of all those who are in public service for the nation to have a structured growth but with the 2021 Rules in place, one would have to think twice before criticising any such personality, even if the writer/editor/publisher may have good reasons to do so without resorting to defamation and without inviting action under any other provision of law. Therefore, the rules in their present form could potentially block the content or restrict the freedom of speech of the citizens the moment content is flagged as fake by the FCU.
The experiences from Singapore, Russia, and Turkey make it cogently clear that just bringing laws to curb fake news and misinformation would not help as the same were used to suppress dissent, criticism, free speech and expression. Brazil is also marching on the same path. India has brought these rules by amending the IT Rules, 2021. India needs to work to improve the existing system to tackle the menace of fake news and misinformation. The Rule, in its current form, suffers from the vice of excessive delegated legislation and is beyond the substantive powers of the law and fails to address several concerns surrounding fake news or misinformation.
1. 9. Observance and adherence to the Code.—(1) A publisher referred to in rule 8 shall observe and adhere to the Code of Ethics laid down in the Appendix annexed to these rules. (2) Notwithstanding anything contained in these rules, a publisher referred to in rule 8 who contravenes any law for the time being in force, shall also be liable for consequential action as provided in such law which has so been contravened. (3) For ensuring observance and adherence to the Code of Ethics by publishers operating in the territory of India, and for addressing the grievances made in relation to publishers under this Part, there shall be a three-tier structure as under— (a) Level I - Self-regulation by the publishers; (b) Level II – Self-regulation by the self-regulating bodies of the publishers; (c) Level III - Oversight mechanism by the Central Government.
3. Section 2(2)(b) a statement is false if it is false or misleading, whether wholly or in part, and whether on its own or in the context in which it appears.
4. 61. The Minister may, by order in the Gazette, exempt any person or class of persons from any provision of this Act.
6. Under the Brazilian Constitution, elected officials are immune from civil and criminal liability for their opinions, speeches and votes. However, the same immunity is now being extended to the online world as well.
7. In June 2022 a story by the Reporters Collective about the Government making Aadhaar compulsory for a nutritional programme for children was termed as fake by the fact-checking wing of PIB. The report had shown, along with correspondences issued by the Ministry of Women and Child Development (WCD) to States, that the Union government had warned states that it would withhold financial support to the Integrated Child Development Scheme if Aadhaar was not linked. Though PIB termed this report as fake news in June 2022, it was only in August 2022, that the WCD Ministry issued guidelines stating that Aadhaar was not mandatory.