Goodbye to questionable ‘FACT-CHECKING’

Shivanand Pandit

On September 20, the Bombay High Court ruled that the amended Information Technology (IT) Rules, 2021, which allowed the government to create a ‘Fact Check Unit' (FCU) to identify ‘fake, false, or misleading' online content about itself and its institutions, were ‘unconstitutional' and ‘vague.' Justice Atul Sharachchandra Chandurkar delivered the verdict as the tie-breaking judge after a split decision from a division bench consisting of Justices G.S. Patel and Neela Gokhale in January 2024.

The Ministry of Electronics and IT (MEiTY) introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (2023 Rules), updating the 2021 IT Rules. This amendment granted the Union government the authority to establish a fact-checking body to classify any information about the Central government as ‘fake, false, or misleading.' Specifically, amended Rule 3(1)(b)(v) required social media intermediaries to make reasonable efforts to prevent users from uploading or transmitting content flagged by the Centre's FCU as misinformation. If intermediaries wanted to maintain their ‘safe harbour' protection – a legal immunity against third-party content – they would need to remove such flagged content within 36 hours. Shortly after the rules were notified, their constitutional validity was challenged in the High Court by political satirist Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines.

The Press Information Bureau's (PIB)FCU was established in November 2019 to tackle fake news and misinformation. Its main objective is to provide a platform where the public can report suspicious information regarding the Government of India. The PIB-FCU is responsible for proactively addressing misinformation related to government policies, initiatives, and schemes, either on its initiative or in response to public concerns. The unit monitors disinformation campaigns and swiftly identifies and corrects false claims about the government. When the PIB-FCU designates content as fake, social media platforms are required to remove it under the IT Rules, and internet service providers like Jio and Airtel must block links to the identified misinformation.

Concerns have been raised about the PIB's FCU and its potential to censor content, which could create a chilling effect on free speech and expression under Article 19(1)(a). Many worry that individuals may hesitate to share their opinions online for fear of censorship or legal repercussions. The FCU's authority could be misused by the government to suppress dissent and criticism, posing serious risks to democracy and human rights. The unit's role presents a significant conflict of interest, acting as judge, jury, and executioner without clear definitions of what constitutes “fake, false, or misleading” information. This ambiguity can lead to arbitrary censorship by the government. The establishment of theFCU with the power to order content removal bypasses the safeguards and procedures outlined in the Shreya Singhal v. Union of India case and Section 69A of the IT Act, which extend free speech rights into the online realm.

Unjustified restrictions

The Centre's initiative to establish a ‘fact-checking unit' with the authority to mandate the removal of ‘fake, false, or misleading' information from digital and social media platforms was destined to face significant challenges. In a pivotal ruling, Justice A.S. Chandurkar of the Bombay High Court invalidated the amended rule, breaking a tie after a two-judge bench had been divided on its constitutional legitimacy.

In what emerged as a 2:1 decision, Justice Chandurkar sided with Justice G.S. Patel, who had previously asserted that the provision infringed upon the fundamental right to freedom of expression. Justice Patel argued that the criteria used to classify speech as true or false were vague and ill-defined, effectively coercing individuals into conforming to a narrow interpretation of acceptable discourse. The government defended its position by asserting that material published recklessly and contrary to the truth should not be afforded constitutional protection. They argued that platforms feeling aggrieved by the dissemination of such information had the option to seek legal recourse through the courts. However, the ruling underscored concerns about the potential for government overreach and the implications for free speech in the digital realm.

In a recent ruling, two of the three judges found the government's rule establishing a fact-checking unit unconstitutional, highlighting several critical flaws. They pointed out that the terms ‘fake,' ‘false,' and ‘misleading' were not clearly defined, which created ambiguity and left no avenues for redress within the rules themselves. Furthermore, it was noted that the restrictions were applied exclusively to information regarding the Centre, raising concerns about selective enforcement and potential bias. Justice A.S. Chandurkar concurred with Justice G.S. Patel in emphasizing that limiting free speech based on the classification of information as true or false does not fall under the reasonable restrictions outlined in Article 19(2) of the Constitution. This article enumerates specific circumstances under which free speech can be curtailed, and the judges found that the government's rationale did not align with these criteria.

On the other hand, Justice Neela Gokhale, the third judge on the bench, upheld the constitutionality of the rule. She argued that the language of the rule was sufficiently clear and maintained that platforms could still publish disclaimers to preserve their safe harbour protections. Justice Gokhale dismissed concerns about a chilling effect on free speech, suggesting that the rule would not unduly suppress expression.

While the issue of misinformation is undoubtedly pressing and needs to be addressed, the ruling underscored a significant principle: the creation of a mechanism allowing the government to serve as the sole arbiter of what constitutes misleading information about itself poses a danger to democratic discourse. The judges stressed that the fight against false information should not come at the cost of freedom of expression and the public's ability to engage in open dialogue.

Way Forward

The recent verdict by the Bombay High Court in the case of Kunal Kamra v. Union of India (2023) declared the establishment of FCUs under the amended IT Rules as unconstitutional. This ruling raises critical questions about the broader implications of these rules, particularly concerning mandates for social media platforms to create grievance redressal and compliance mechanisms. The Supreme Court is expected to deliver a final verdict addressing these additional concerns. In light of this, the government must engage collaboratively with civil society, media organizations, and other relevant stakeholders to develop a transparent and participatory framework for identifying and classifying content deemed fake or misleading. This process should not only be inclusive but also reflect diverse viewpoints to ensure fairness and accuracy in content moderation. Furthermore, any entities or individuals tasked with fact-checking must be independent and non-partisan. Clear and comprehensive guidelines should be established to govern their decision-making processes, ensuring that their actions are based on objective criteria rather than ideological biases. This independence is essential for maintaining public trust in the integrity of fact-checking efforts.

Additionally, the government must adhere to established legal frameworks when issuing takedown requests for online content. This includes following the procedures and safeguards outlined in the landmark case of Shreya Singhal v. Union of India, which emphasizes the need for clarity and limits on the government's power to restrict online expression. Compliance with Section 69A of the IT Act is also vital, as it specifies the conditions under which the government can lawfully remove content from the internet. By following these established legal protocols, the government can ensure that any action taken against online content is justified, and transparent, and respects individuals' rights to free expression. The government should prioritize a balanced approach that fosters collaboration with various stakeholders, maintains the independence of fact-checkers, and strictly adheres to legal guidelines when managing online content. It will help cultivate a digital environment that upholds democratic values and safeguards freedom of expression.

The recent verdict from the Bombay High Court has reaffirmed the importance of freedom of information and the right to express opinions. However, the designation of the government as a bureaucratic body overseeing fact-checking indicates that media scrutiny is likely to persist in various forms. In a diverse and dynamic media landscape, where political leaders are increasingly sensitive to coverage, the line between fact and misinformation can easily blur. What one person sees as a factual statement might be dismissed by another as fake news, leading to confusion and conflict in public discourse.

This scenario underscores the necessity for politicians to adopt a more constructive approach to media relations, similar to how the stand-up comedy and opinion sectors thrive in many Western democracies. In those environments, a robust exchange of ideas, including dissenting opinions, is not only accepted but celebrated. Embracing this perspective could foster a healthier media ecosystem where diverse viewpoints coexist without the looming threat of censorship.

To further strengthen the integrity of the media, there is a compelling argument for establishing more stringent standards for fact-checking. Reputable media organizations around the world often mandate that any fact be corroborated by at least two independent sources before publication. This practice not only enhances credibility but also serves as a safeguard against the proliferation of misinformation. Adopting such rigorous standards should be a priority to prevent the emergence of flawed fact-checking initiatives, which could undermine public trust and distort the narrative landscape.By prioritizing reliable fact-checking and fostering open dialogue, we can create an environment where informed discourse thrives and the distinction between fact and fiction is clearer, benefiting both the media and the public at large.

The writer is a tax specialist, financial adviser, author, guest faculty and public speaker based in Goa. He can be reached at panditgoa@gmail.com or 9822983420