Context: Bombay High court has recently reserved its judgement on petitions challenging constitutionality of the Fact Check Unit established under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules) in Kunal Kamra v. Union of India.
Background:
- In 2023, MEiTY promulgated the 2023 rules amending IT rules 2021, allowing the government to constitute a Fact Checking Unit (FCU) under IT (Intermediary Guidelines and Digital Media Ethics Code), Amendment 2023.
- New rules require Social Media intermediaries to censor or modify the content relating to “business of Central government” if the FCU directs them to do so.
- FCU will have power to decide whether the content on social media is fake, false, or misleading.
- Once content is identified as fake or misleading, intermediaries must take action or lose “safe harbor” protection under I.T. Act, 2000.
Concerns against Fact Check Unit
- Change is not in spirit with Section 79A of IT Act, 2000 which mandates providing details with reasons for such takedown orders given to IT intermediaries.
- As there is no right to appeal or judicial oversight over orders given by the Fact Check Unit, such powers can be misused to prevent questioning or scrutiny by media organizations.
- May create a “chilling effect” on the right to speech and expression on digital platforms which is against the spirit of Article 19(1)(a) as it gives unfettered powers to FCU.
- Violative of Right to Equality under Article 14 as it discriminates between false news about the government and other false news.
- Violates separation of powers as these orders have a judicial overtone but exercised by an executive unit i.e., the Fact Check Unit.
- There is a moral argument, government cannot be the sole arbiter of what constitutes fake news.
- Broad scope open to misuse as the FCU can verify the veracity and take down any post on IT intermediaries which relates to “any business of central government”, which is very broad and not defined.
- No clear parameters or guidelines have been given on the grounds on which FCU flags an information as Fake or ambiguous.
- Concerns as to what part of information would be fake, whether the source is fake, or the information itself is fake.
- Rules do not offer protection to fair criticism of government.
- PIB is already doing fact checking efficiently, so why need a new mechanism.
- Ambiguity with respect to the well settled test of reasonableness under Article 19(2) with respect to the boundary separating fake news.
Other ethical issues
- Misleading for one may not be for the other, such terms are subjective, and open to various interpretations.
- In editorial content such as Economy, there can be variation in data as per government and other researchers, such data cannot be called as fake data.
- There are no provisions in Rules that provide an opportunity to justify or defend the flagged content, violating principles of natural justice.
Rationale of Government for establishing FCU
- FCU’s notices are merely advisory in nature.
- FCU will only notify intermediaries that the content is fake, or misleading. Intermediaries can choose to take it down or leave with disclaimer.
- In case the user is aggrieved by the intermediary’s decision, they can avail remedy before the court of law.
Conclusion & way forward
Law has to be tested not only on its intentions, but also if its consequences are constitutional.
In Bennett Coleman & Co. vs Union of India, S.C. has held that freedom of speech and of press is the Arc of the Covenant of democracy because public criticism is essential to the working of its institutions, which must be respected.· Moving ahead with FCU, the government must ensure that the constitution of FCU restricts to the test of reasonableness under Article 19(2) and guidelines given in Shreya Singhal vs Union of India (2015).
