Syllabus
GS Paper 3 – Challenges to Internal Security through Communication Networks, Role of Media and Social Networking Sites in Internal Security Challenges, Basics of Cyber Security
Context
The Bombay High Court invalidated a provision in the 2021 IT Rules that permitted the government to designate ‘fake news’ on social media via a Fact Check Unit (FCU).
Source
The Hindu| Editorial dated 23rd September 2024
Unwarranted curbs
The IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, introduced by the Ministry of Electronics and Information Technology (MeitY), aim to address the rising concerns of fake news and misinformation on online platforms.The government also designated the Press Information Bureau’s Fact Check Unit (PIB-FCU) to regulate this space.
However, the amendment has faced criticism due to concerns about government overreach, free speech, and the potential for censorship. The recent Bombay High Court verdict further highlighted these issues by declaring parts of the amendment unconstitutional.
Background of the Case
- Introduction of IT Rule Amendment:
- The Ministry of Electronics and Information Technology (MeitY) introduced the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, which modified the earlier 2021 IT Rules.
- Provision of the Amendment:
- The amendment expanded the definition of ‘fake news’ to include matters related to ‘government businesses.
- It designated the Press Information Bureau’s Fact Check Unit (PIB-FCU) as the authority to fact-check such information under the amended rules.
- Aim of the FCU:
- The Fact Check Unit (FCU) was assigned to identify and flag social media posts deemed ‘fake,’ ‘false,’ or ‘misleading’ concerning government affairs.
- Social media platforms would be required to remove such flagged content to maintain their “safe harbour” status and legal immunity.
- Concerns Raised:
- The rules generated concerns regarding free speech and the extent of government regulation, as they effectively made the government the sole authority to decide the truthfulness of information related to its own activities.
Judgement of the Bombay High Court
Unconstitutionality of Amended Rules: The Bombay High Court ruled in a 2-1 verdict that the amended IT rules were unconstitutional.
- Restriction of Fundamental Rights:
- The majority held that the amended rules violated Articles 14, 19(1)(a), and 19(1)(g) of the Constitution, as they disproportionately restricted fundamental rights.
- Vague and Misleading Terms:
- The court criticized terms like ‘fake,’ ‘false,’ or ‘misleading’ as being vague and overbroad. It is not the state’s responsibility to ensure that citizens receive only ‘truthful’ information.
- Chilling Effect on Free Speech:
- The threat of losing “safe harbour” status was seen as creating a chilling effect on freedom of speech and expression.
- Overarching Powers of the FCU:
- The FCU’s authority to classify speech as true or false and compel the removal of content was criticized as overreaching and amounting to censorship.
PIB’s Fact-Check Unit (PIB-FCU)
- Establishment:
The PIB-Fact Check Unit was created in November 2019 to counter fake news and misinformation related to the Government of India. - Functions/Mandate:
- Countering Misinformation:
It addresses misinformation regarding government policies, initiatives, and schemes, acting on complaints or taking suo motu action.
- Detection of Disinformation:
The unit actively monitors and counters disinformation campaigns about the government, ensuring false information is corrected.
- Content Takedown:
When the FCU flags content as fake, social media platforms are obligated to remove it, and internet service providers must block the related web links.
- Countering Misinformation:
Government’s Rationale for Notifying PIB-FCU
- Addressing Fake News:
- The fact-checking body was expected to combat the spread of fake news on online platforms, which could potentially harm society.
- Improved Accountability:
- The notification would enhance the accountability of social media intermediaries like Facebook and Twitter, as they would be required to remove flagged content.
- Enhancement of Cybersecurity:
- The FCU was intended to improve cybersecurity by preventing the misuse of online platforms for illegal or harmful activities, such as the spread of deepfakes.
- Prevention of Hate Speech and Violence:
- By ensuring compliance with Indian laws like the IT Act and national security regulations, the FCU aimed to prevent the use of digital platforms for spreading hate speech or inciting violence.
Concerns with the Government’s Notification
- Chilling Effect on Free Speech:
- There were concerns that the FCU’s censorship powers could create a chilling effect on free speech under Article 19(1)(a), leading to self-censorship by individuals.
- Potential for Misuse:
- Critics feared the FCU could be misused by the government to silence dissent or stifle criticism of its actions, posing risks to democracy and human rights.
- Conflict of Interest:
- The PIB-FCU’s role as the judge, jury, and executioner was seen as a significant conflict of interest.
- Lack of Clarity on ‘Fake’ Information:
- The absence of a clear definition for what constitutes ‘fake,’ ‘false,’ or ‘misleading’ information raised concerns about arbitrary censorship.
- Bypassing Established Legal Procedures:
- The unit’s powers were seen as bypassing the safeguards and procedures established in the Shreya Singhal v. Union of India case and Section 69A of the IT Act, which safeguard free speech online.
Way Forward
- Final Verdict of the Supreme Court:
- The Bombay HC verdict declared the establishment of fact-check units unconstitutional. The Supreme Court needs to deliver a final verdict on broader concerns of the IT Rules and their compliance mechanisms.
- Transparent and Participatory Process:
- The government should develop a transparent process involving civil society and media organizations to determine what content qualifies as fake or misleading.
- Independent Fact-Checking Body:
- There is a need for an independent and non-partisan fact-checking body, with clear and transparent guidelines for decision-making.
- Compliance with Legal Guidelines:
- Any takedown requests should adhere to the procedures laid out in Shreya Singhal v. Union of India and Section 69A of the IT Act, ensuring they do not overreach.
Conclusion
While the IT Rules Amendment and the establishment of the PIB-FCU were intended to tackle the growing issue of fake news, concerns over the implications on free speech and government overreach remain significant. The Bombay High Court’s ruling brought attention to these challenges, stressing the importance of protecting fundamental rights and preventing arbitrary censorship. Moving forward, there is a need for a more transparent, independent, and participatory approach to fact-checking, aligned with constitutional safeguards and legal precedents.
Related PYQ
Considering the threats cyberspace poses for the country, India needs a “Digital Armed Force” to prevent crimes. Critically evaluate the National Cyber Security Policy, 2013 outlining the challenges perceived in its effective implementation? [UPSC Civil Services Exam – Mains 2014]
Practice Question
Discuss the recent amendments to the IT Rules 2023 concerning fact-check units, and critically analyze the concerns regarding their implications on freedom of speech and expression? [250 words]
Guidelines to Answer
- Introduction:
- Provide a brief context of the IT Rules Amendment, 2023.
- Introduce PIB-FCU and its role in addressing fake news.
- Body:
- Provisions of the Amendment: Outline PIB-FCU’s powers under the amended rules.
- PIB-FCU Functions: Explain its mandate to flag and remove government-related misinformation.
- Address issues of misuse, conflict of interest, and vague definitions.
- Way Forward: Advocate for transparency, independent fact-checking, and adherence to legal safeguards.
- Conclusion:
- Summarize the balance between curbing misinformation and preserving free speech.