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Examining India’s Fact Check Unit: Risks of Government Overreach on Online Content
What’s the matter?
- The IT Rules amendment allowing a government fact checking unit has sparked debates around censorship and free speech online
- Petitions filed in Bombay HC challenging the constitutionality of the fact check unit
- HC has raised concerns regarding the unit’s powers and safeguards
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 notified by the Ministry of Electronics and IT (MEiTY) in April 2023 have become a subject of controversy. The rules empower a fact check unit of the Union Government to identify “fake or false or misleading” online content related to the Central Government and demand its removal.
This has led to petitions being filed in the Bombay High Court challenging the constitutionality of the Fact Check Unit (FCU) on the grounds that it could enable government censorship online and violate the right to free speech. The High Court has raised several concerns regarding the FCU’s powers and lack of adequate safeguards while reserving its verdict on the issue. The introduction of the FCU without sufficient guidelines has sparked heated debates around censorship and the impact on freedom of speech online.
Fact Check Unit Overview
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What is the FCU? |
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Key Concerns |
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Bombay HC Case |
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Future Implications |
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Background
What is the Fact Check Unit (FCU)
- Proposed under IT Rules 2021 amendments
- Allowed IT Ministry to appoint fact check body to flag “fake or false” online content related to central govt
- Intermediaries required to take down such content to retain safe harbour protections
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were amended in April 2023 to allow the Ministry of Electronics and IT (MEiTY) to appoint a fact check body. This Fact Check Unit (FCU) would be empowered to identify online information related to the Central Government that it considers “fake or false or misleading”.
The amendments require online intermediaries like social media platforms to take down any content that the FCU flags as fake or false. This is one of the due diligence obligations intermediaries have to follow under the rules to avail safe harbour protections and avoid liability for third party content they host under Section 79 of the IT Act, 2000.
Concerns Around the FCU
- Could lead to censorship and affect right to criticise government
- Determination of fake news cannot be solely by government
- Proximity of proposed PIB fact check unit to government raises credibility concerns
- Lack of safeguards and opportunity to defend content flagged
The introduction of the FCU as per the IT Rules amendments has raised several concerns regarding censorship and impact on free speech online.
Critics argue the FCU could lead to increased government control and enable censorship of content critical of the government. The determination and labeling of fake news cannot be solely in the government’s hands as it has conflicts of interest.
The initial proposal to designate the PIB’s fact check unit, which operates under the I&B Ministry, also faced backlash. PIB’s proximity to the government was seen as a credibility issue in undertaking independent fact checks of government-related information.
Further, the lack of statutory safeguards and not providing an opportunity to defend content flagged as fake or misleading violates principles of natural justice according to critics. There are also concerns around excessive powers to the FCU without necessary accountability mechanisms.
Changes in Final Notified Rules
- Removed direct reference to PIB fact check unit
- Allows IT Ministry to appoint other fact check units in future
The final amendments notified in April 2023 removed the direct reference to the Press Information Bureau’s (PIB) fact check unit, which was proposed initially.
Instead, the notified rules now allow the Ministry of Electronics and IT to appoint any fact check body in the future to identify “fake or false or misleading” online content related to the Central Government.
Key Concerns Raised by Bombay High Court
Ambiguity in Rules
- Undefined terms like “fake”, “false”, “misleading” are subjective
- No clarity on what constitutes “business of central government”
The Bombay High Court pointed out that key terms used in the amended rules such as “fake”, “false” and “misleading” are subjective. There is ambiguity around what constitutes “business of the central government” as well.
The court said that such subjective terms are open to interpretation and could potentially be misused to stifle criticism of the government.
Risk of Excessive Censorship
- Intermediaries likely to take down content to retain protections
- No opportunity given to defend content flagged as misleading
The court expressed concerns that online intermediaries are likely to take down content identified as fake or misleading by the FCU in order to retain their safe harbour protections.
It highlighted that the rules do not provide an opportunity to defend content flagged by the FCU. This could lead to excessive takedown of content and enable censorship beyond reasonable restrictions.
Lack of Safeguards
- Gives government “unfettered power” to determine truth without guidelines
- No independent oversight or accountability for fact check unit
The Bombay High Court said the Fact Check Unit has been given “unfettered power” to determine the truth and label content as fake or misleading without any statutory guidelines or oversight.
There is no independent accountability mechanism for the fact check body as per the amended rules. This raises concerns about potential misuse of the provision by the government.
Only for Digital Media
- Print media not covered, raises arbitrariness concerns
The court pointed out that the Rules only apply to online intermediaries and digital media, not traditional print media. This arbitrary distinction makes the same content illegal online but legal offline.
Recourse for Users
- No remedy for users whose content removed after being flagged
The court expressed concerns that the Rules do not provide any remedy to users whose content is removed by platforms after being flagged by the FCU. This leaves people with no recourse to appeal against such takedown of content.
Final thoughts
- Judgment expected from Bombay HC in December 2023
- Implications for free speech online depending on verdict
- Need for safeguards like independent oversight if FCU is upheld
The Bombay HC is expected to deliver its judgment on the petitions in December 2023. The implications for online free speech will depend on whether the court upholds or strikes down the controversial FCU provision.
If the FCU is upheld, safeguards like independent oversight and detailed guidelines should be introduced to prevent misuse and censorship. The judgment will provide much needed clarity on balancing free speech with tackling misinformation online.