It is a new assault on India’s liberty

Source– The post is based on the article “It is a new assault on India’s liberty” published in “The Hindu” on 20th April 2023.

Syllabus: GS2- Polity

Relevance– Issues related to free speech

News– The Union government introduced a new set of measures for dealing with fake news and misinformation on the Internet. These introductions came through an amendment made to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, or IT Rules.

What are important provisions of amended IT rules?

The amendment gives power to the Union Ministry of Electronics and Information Technology for creating a “fact check unit”. It will identify false or misleading online content that is related to the central government’s business in any manner.

If social media intermediaries fail to prevent users from hosting information that has been identified as false by the fact check unit, they will lose their “safe harbour” immunity.

What are some facts about IT rules?

The Union government gets power to decide what information is bogus. It can exercise wide ranging powers of censorship by compelling intermediaries to take down posts deemed fake or false.

The IT Rules derive their authority from the Information Technology Act, 2000 meant to provide “legal recognition” for electronic commerce.

Section 79 of the Act provides a “safe harbour”. It does it by granting immunity to intermediaries, if they observe “due diligence” in discharging their duties and follow other guidelines prescribed by the state.

An intermediary under the law refers to any person who receives, stores, or transmits electronic records. It would include Internet service providers, search engines, and social media platforms.

IT Rules were introduced in 2021, are divided into two distinct parts. The rules regulate intermediaries through MeitY. Digital news media, including over-the-top (OTT) media services are regulated through the Union Ministry for Information and Broadcasting.

The IT Rules imposed a series of obligations. A breach of these could result in a loss of safe harbour.

The rules required social media platforms to provide technological solutions to identify the first originator of any information on their service, where demanded by government, or mandated by an order of court.

What are the issues with amendments in IT rules?

The Union government gets power to decide what information is bogus. It can exercise wide ranging powers of censorship by compelling intermediaries to take down posts deemed fake or false.

The amendments introduced are a threat to liberty. Misinformation or fake news is rampant on the Internet. But all problems are not capable of easy legislative solutions. Thoughtless censorship is never an answer.

The rights of the press, and common person, to question authority, to speak truth to power, will be diminished.

Restrictions have not been imposed through legislation, but through executive orders. This is against the substantive constitutional guarantees.

Article 19(1)(a) grants every citizen a right to freedom of speech and expression. That right can only be limited through reasonable restrictions made by law on grounds stipulated in Article 19(2). Fake news and misinformation are not grounds on which speech can be limited.

The amendments made to the IT Rules do not put limits on restraints imposed. Instead, they confer on the Fact Check Unit limitless powers to decide what information is false and compel social media intermediaries to act based on these findings.

In Shreya Singhal vs Union of India judgement, the Supreme Court held that a law that limits speech can neither be vague nor over­broad. The amendment to the IT Rules suffers on both accounts.

First, the notification fails to define fake news. Second, it allows the government’s fact Check unit to verify any news “in respect of any business” that involves the state.

There are uses of open ended and undefined words, especially the use of the phrase “any business”. It indicates that the government will have the power to decide what each of us can see, hear, and read on the Internet.

What is the way forward for the government to act against fake news?

There is a need for comprehensive parliamentary legislation on the fake news and misinformation. And legislation emanating out of such a process would put limitations on speech subjected to grounds stipulated in Article 19(2).

The government cannot act as an arbiter of its own cause. In France, where legislation exists to counter the spread of misinformation during elections, the declaration is made not by the government but by an independent judge.

A directive to remove misinformation is not the only solution to fake news. There are other, less restrictive alternatives available.