On April 6, 2023 the central government introduced a new set of measures to eliminate fake news and misinformation on the internet. These introductions have come through the Information Technology (Intermediary Guidelines and Digital Media Code of Conduct) Rules, 2021, or through amendments made to the IT Rules. The amendment gives unbridled power to the Union Ministry of Electronics and Information Technology (MeitY) to create a “fact checking unit”, which will identify false or misleading online content relating to central government business in any way. Should social media intermediaries fail to prevent users from hosting or publishing information that has been flagged as false by the Fact Check Unit, they stand to lose their “safe haven” immunity. In other words, any protection that online platforms have against criminal prosecution will be withdrawn.
Result
The result of the new regulation is this: the central government itself has to decide what information is fake and exercises broad powers of censorship by forcing intermediaries to remove posts deemed fake or inaccurate. In a democracy, where information is free, and where the right to freedom of expression is constitutionally guaranteed, the new law should be downright abhorrent to us.
IT regulations derive their authority from the Information Technology Act, 2000, a law which at the time of its inception was meant to provide “legal recognition” to electronic commerce. Through section 79, the Act provides a “safe harbour” by providing immunity to intermediaries, as long as these entities exercise “due diligence” in discharging their duties under the law, and as long as they are regulated by the State. Adhere to other prescribed guidelines. An intermediary under the law refers to any person who receives, stores or transmits electronic records – this would include internet service providers, search engines and social media platforms. For example, WhatsApp, Signal, Twitter, Facebook and Instagram are all what the law considers intermediaries.
When the IT rules were introduced in 2021, in supersession of the previous guideline, it was already mired in controversy. The bifurcated rules to regulate intermediaries through MeitY and digital news media, including over-the-top (OTT) media services such as Netflix and Amazon Prime, through the Union Ministry of Information and Broadcasting. IT regulations have imposed several onerous obligations as far as intermediaries are concerned, the breach of which may result in loss of safe harbor.
Among other things, the rules require social media platforms, in particular messaging services, to provide technical solutions that enable them to identify the first originator of any information on their service, where such information is required by the government. Under the circumstances sought, or where mandated by court order. Given its implications on end-to-end encryption, and consequently on our right to privacy, the IT rules have been subject to several sets of challenges, with petitions now pending in the Supreme Court of India.
ban through executive decrees
The amendments introduced this month bring with them a new attack on our freedoms. To be sure, misinformation or fake news – whatever one wants to call it – is rampant on the Internet. Its effects are undoubtedly harmful. But what can be the solution to this problem? An oft-quoted passage is from Justice Louis Brandeis’s classic 1927 opinion in the United States Supreme Court case, Whitney v. California, where he wrote that “if there is time to expose through discussion, lies and fallacies, evil will To overcome the process of education, the measure to be applied is more speech, not silence by force …”. But given the structural inequalities in society, we know that such a resolution is not always helpful, that speech itself can be harmful, and that when it does, it calls for intervention from the law.
Equally, though, we must be cognizant that not all problems are capable of easy legislative solutions. Certainly, mindless censorship is never the answer. What’s worse, in the case of IT regulations, the restrictions flow not through legislation, but through executive decrees. And these orders are against the fundamental constitutional guarantees. Article 19(1)(a) provides every citizen with the right to freedom of speech and expression. This right can be limited only through reasonable restrictions made by law on one or the other of the grounds set out in Article 19(2), namely, “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign countries”. States, in relation to public order, decency or morality or contempt of court, defamation or incitement to an offence”.
As is evident, fake news and misinformation are not grounds on which to limit speech. No doubt, if any information is proved to be false and has a direct bearing on any one of the grounds set out in Article 19(2), such speech can be restricted through legislation. But the amendments made to IT rules do not in any way alert to the constraints imposed by them. Instead, they give fact check units immense powers to decide what information is false and in the process compel social media moderators to act on the basis of these findings.
open ended and undefined
In its landmark judgment in Shreya Singhal v. Union of India (2015), the Supreme Court struck down Section 66A of the IT Act, saying that a law restricting speech can be neither vague nor broad. The amendment in IT rules falls on both accounts. First, the notification fails to define fake news. Second, it allows the fact-checking arm of the government to declare on the veracity of any news item relating to the state “in relation to any business”. The use of open-ended and undefined words, especially the use of the phrase “any business” – in a nation like India, where the state has a wide reach – indicates that the government has an effective carte blanche to decide whether Would each of us be able to see, hear and read on the Internet.
Any practical and constitutionally committed campaign against fake news would first look for a comprehensive parliamentary law on the matter. and the law emanating from such process would limit the limits of speech on the grounds set out in Article 19(2). It would also ensure that the government could not act as an arbiter of its own cause. For example, in France, where legislation exists to combat the spread of misinformation during elections, the announcement is made not by the government but by an independent judge.
An appropriate, legally enacted law would also have sought to decide whether directing the removal of misinformation is the only solution to fake news, or whether other, less restrictive options are available – for example, in many cases What a problem faced by a government that believes that misleading news always has the power to provide its own version of facts, without trashing other accounts.
The amendments to IT rules are not only a product of pure executive directives but also the ideas each of these have been discarded. The results are chilling. Intermediaries facing the threat of a lawsuit will naturally remove information deemed inaccurate by the fact check unit. It will only be for the state to tell us what is the truth. The rights of the press to question power, to speak truth to power, and indeed the rights of the common man, will be curtailed, and our civil liberties will end.
Suhrith Parthasarathy is an advocate at the Madras High Court.