Fact Check Mandate - Excessive and Unconstitutional
INTRODUCTION
The Ministry of Electronics and Information Technology (“MeitY”) ‘notified an amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2023”) [1] on 06 April 2023, wherein Rule 3(1)(b)(v)’ [2] (“Impugned Rule”) introduced a new category for the removal of content by intermediaries, i.e., ‘any information
that has been identified as fake, false or misleading by the agency, appointed as a “Fact Checking Unit” (“FCU”) of the Central Government’. [3] The Central Government’s press release stated that the aim of this amendment was to implement greater due diligence in intermediaries with respect to dissemination of fake or false or misleading information related to the Business of the Central Government. [4]
CHALLENGE BEFORE THE BOMBAY HIGH COURT
A batch of three writ petitions filed before the Division Bench comprising of G.S. Patil, J. and Neela Gokhale, J. of the Hon’ble Bombay High Court, [5] challenged the constitutional validity of the Impugned Rule on the following grounds:
a) The Impugned Rule sought to censor or otherwise modify the nature of content available on the platforms of the intermediaries and proposed to introduce a government-mandated fact check body and that was violative of the fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution of India.
b) The Impugned Rule amounted to class legislation as it was discriminatory in nature and fell foul of Article 14 of the Constitution.
c) The Impugned Rule was violative of principles of natural justice, inasmuch as it was opaque on procedural fairness and due process, absence of opportunity to show cause, seek hearing or absence of onus for giving a reasoned order on the FCU and that it made the Government a judge in its own case.
d) The said rule was ultra vires of the Information Technology Act 2000 (“Act”).
e) The expression "knowingly and intentionally" did not apply to the Impugned Rule in relation to the business of the Central Government.
f) The expression "fake or false or misleading" in absence of it being defined was vague and overbroad.
g) The Impugned Rule does not satisfy the five-pronged test of proportionality. [6]
h) The Impugned Rule also resulted in a chilling effect qua an intermediary.
The Division Bench delivered a split verdict on 31.01.2024, [7] pursuant to which the proceedings were referred to A.S. Chandurkar J to render an opinion on the points of difference that arose between the judges of the Division Bench. The reference judge concurred with G.S. Patil, J on all the points of difference, delivering a verdict, whereby the Impugned Rule was struck down as being unconstitutional and violative of principles of natural justice and Article 14 and 19 of the Constitution. [8]
The reference judge held that the proposed Impugned Rule indicated a complete and utter lack of application of mind on part of the lawmakers and sought to enforce a form of censorship which impaired the core values enshrined in Article 19(1)(a) and had a chilling effect on the right to free speech. The Impugned Rule was also an excessive subordinate delegative legislation as it sought to impose restrictions that had a wider breadth than the restraints contemplated under the parent Act. The decision of the Bombay High Court in this regard was a welcome relief.
FACT CHECK MECHANISM OF INTERMEDIARIES
In this context, it is imperative to mention that most intermediaries have fact-check mechanisms on their platforms. Meta engages third party fact-checkers for its social media platforms Facebook and Instagram in some territories”. [9] Similarly, X (formerly Twitter) has an identical misinformation policy which states that misleading “content is identified through a combination of human review and technology, and through partnerships with global third-party experts”. [10]
The fact checkers of intermediaries review the content and assign labels basis different parameters as per the authenticity of the content. The intermediary then takes action on users that repeatedly get labelled as per the parameters such as false, altered or partly false, etc., [11] including but not limited to reducing their reach on the platform and removing opportunities to monetise and advertise on the platform. There is no legislation to look into the transparency and authenticity of such internal, non-jurisdictional fact check mechanisms implemented by the intermediaries. It appears as if the lawmakers overlooked an opportunity to create proper checks and balances to tackle this anomaly.
CONCLUSION
The IT Rules, 2023 were framed under the Act and pertain to blocking content under section 69A of the Act. Moreover, the Impugned Rule went beyond the permitted grounds to block content under section 69A, which is clothed in restrictive language similar to that of the restraints imposed on free speech under Article 19 of the Constitution. [11] Non-compliance with
directions issued under section 69A, may result in the intermediary losing their safe harbour protections, provided under Section 79 of the Act, which is a legal immunity blanketing intermediaries from being penalised for hosting third party content. However, it is still unclear if the fundamental rights of citizens continue to be impacted whether it is by the State attempting to protect its interests under the garb of providing authentic information to citizens, or the intermediaries, that have transgressed the role of a neutral host to exercising control over determining the authenticity of the content hosted on their platforms. The present instance provides the lawmakers an opportunity to legislate comprehensive rules to protect the rights of the citizens, whether they take it or not, only time will tell.
References:
1. Rule 3(1)(b)(v):deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature 1[or is identified as fake or false by the fact check unit at the Press Information Bureau of the Ministry of Information and Broadcasting or other agency authorised by the Central Government for fact checking or, in respect of any business of the Central Government, by its department in which such business is transacted under the rules of business made under clause (3) of article 77 of the Constitution]
2. Ministry of Electronics and Information Technology. “The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.” The Gazette of India, January 17, 2023.
3. https://www.meity.gov.in/writereaddata/files/Revised-IT-Rules-2021-proposed- amended.pdf.
4. https://www.pib.gov.in/PressReleasePage.aspx?PRID=1914358
5. W.P. No. 9792/2023, Kunal Kamra v. Union of India, W.P. 14955 of 2023, Editors Guild
of India v Union of India, and W.P. No. 14702 of 2023, Association of Indian Magazines
v. Union of India.
6. Established in the case of Gujarat Mazdoor Sabha vs. Union of India, 2020 INSC 572
7. 2024 SCC OnLine Bom 778
8. 2024 SCC OnLine Bom 3025
9. “How fact-checking works,” https://transparency.fb.com/en-gb/features/how-fact-checking-works/>
10. “How we address misinformation on Twitter,”https://help.twitter.com/en/resources/addressing-misleading-info
11. ibid
12. The section provides for the issuance of directions to block public access of information through any computer resource only when, the Central Government or the officer specifically designated by it; (ii) is satisfied that it is necessary or expedient so to do; either (a) in the interest of sovereignty and integrity of India; (b) defence of India; (c) security of the State; (d) friendly relations with foreign States; (e) public order; or (f) for preventing incitement to the commission of any cognizable offence.