Context: The Bombay High Court struck down as unconstitutional a key provision of the amended Information Technology (IT) Rules, 2021 which empowered the government to identify “fake news” on social media platforms through a “Fact Check Unit” (FCU). There is an option of an appeal before the Supreme Court, given that similar issues are pending before the Delhi and Madras HCs too.
The law in question:
- In 2023, the Ministry of Electronics and Information Technology (MEiTY) promulgated the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (2023 Rules), which amended the Information Technology Rules, 2021.
- The amendment allows the government to constitute a Fact Checking Unit (FCU) under IT (Intermediary Guidelines and Digital Media Ethics Code), Amendment 2023.
- The amendment to Rule 3(1)(b)(v) of the IT Rules, 2021 expanded the general term “fake news” to include “government business”. Under the Rules, if the FCU comes across or is informed about any posts that are “fake”, “false”, or contain “misleading” facts pertaining to the business of the government, it would flag it to the social media intermediaries concerned.
- The online intermediaries would then have to take down such content if they wanted to retain their “safe harbour” protection under the IT Rules, 2000, that is, legal immunity with regard to third-party content published by them.
- Concerns: The Rules raised concerns over free speech and the extent to which the government can regulate it. The FCUs allowed the government to be the “only arbiter” of truth in respect of business concerning itself.
Need for creation of Fact Check Unit (FCU):
- The Fact Check Unit has a stated objective of acting as a deterrent to creators and disseminators of fake news and misinformation.
- It also provides people with an easy avenue to report suspicious and questionable information pertaining to the Government of India.
- The FCU is mandated to counter misinformation on Government policies, initiatives, and schemes either Suo motu or under a reference via complaints.
- The FCU will actively monitor, detect, and counter disinformation campaigns, ensuring that false information about the Government is promptly exposed and corrected.
Powers of FCU:
- The body will have the authority to label content related to the government on online platforms like Facebook and Twitter as “fake” or “misleading”.
- Content flagged by the unit will have to be taken down if they wish to retain their ‘safe harbour,’ which is legal immunity they enjoy against third-party content.
- Social media sites will have to take down such posts, and internet service providers will have to block URLs of such content.
Issues with the IT Amendment 2023:
Stand-up comic Kunal Kamra, the Editors’ Guild of India, the News Broadcasters & Digital Association, and the Association of Indian Magazines challenged the constitutional validity of the Rules, terming them arbitrary, unconstitutional, and in violation of fundamental rights.
- Violation of IT Act 2000: The fact check unit, notified by the Executive, could effectively issue a takedown order to social media platforms and even other intermediaries across the internet stack, potentially bypassing the process statutorily prescribed under Section 69A of the IT Act, 2000. In addition to circumventing the parliamentary procedures required to expand the scope of the parent legislation, i.e., the IT Act.
- Violation of Fundamental Rights: The amended Rule 3(1)(b)(v) was violative of Articles 14 (equality before law), 19(1)(a) (freedom of speech and expression) and 19(1)(g) (right to practise a profession or trade) of the Constitution. The Rule curtailed the fundamental rights of citizens beyond the reasonable restrictions prescribed under Article 19(2), which was “impermissible through the mode of delegated legislation”.
- Vague definitions: Under the Rules, if the FCU comes across or is informed about any posts that are “fake”, “false”, or contain “misleading” facts pertaining to the business of the government, it would flag it to the social media intermediaries concerned. The expressions “fake, false or misleading” in the Rule are “vague and overbroad”.
- Against the principle of Natural Justice: The FCU has a unilateral view of what is or is not the ‘truth’, and makes the government the sole arbiter. Assigning any unit of the government such arbitrary, overbroad powers to determine the authenticity of online content bypasses the principles of natural justice, thus making it an unconstitutional exercise. The Centre’s claim that decisions given by the FCU can be challenged before a constitutional court “cannot be treated as adequate safeguard”, and therefore, the Rule cannot be saved by reading it down or making a concession of limiting its operation.
- Fails the proportionality test: The Rule resulted in a “chilling effect” on the intermediary due to the “threat of losing safe harbour”, and also on the freedom of speech. These notified amendments in 2023 were also in gross violation of the Hon’ble Supreme Court ruling in Shreya Singhal vs. Union of India (2013) which laid down strict procedures for blocking content.
Shreya Singhal vs. Union of India, 2015:
The Shreya Singhal vs. Union of India case is a landmark judgement by the Supreme Court of India that dealt with the constitutionality of certain provisions of the Information Technology Act, 2000.
The key points of the ruling are:
- Section 66A of the IT Act: The Court declared Section 66A, which criminalised the transmission of "offensive" or "menacing" content, to be unconstitutional on the grounds that it infringed upon the fundamental right to freedom of speech and expression.
- Overbreadth and Vagueness: The Court found that Section 66A was overly broad and vague, as it did not provide clear and definite guidelines for what constitutes "offensive" or "menacing" content. This ambiguity could lead to arbitrary and discriminatory enforcement.
- Chill Effect: The Court also noted that Section 66A had a chilling effect on freedom of expression, as people were afraid to express their opinions online for fear of being prosecuted.
Conclusion: Right of citizens to participate in the representative and participatory democracy of the county is meaningless unless they have access to authentic information and are not misled by misinformation. In the Shreya Singhal Case, the Supreme Court has emphasised the need to strike a balance between the right to free speech and the need to regulate online content. While the government has a legitimate interest in preventing the spread of harmful content, such regulations must be reasonable and proportionate to the legitimate aim sought to be achieved.