On the Issues with Fact Check Unit – A fact check unit that is unconstitutional

Source: The post on the Issues with Fact Check Unit has been created based on the article “A fact check unit that is unconstitutional” published in “The Hindu” on 21st November 2023.

UPSC Syllabus Topic: GS Paper 2 Governance – Government policies and interventions.

News: The article discusses the functions of the Tamil Nadu Fact Check Unit (FCU). It also highlights the issues that may arise due to this and suggests steps to deal with these challenges.

Recently, the Government of Tamil Nadu has issued an order to set up a Fact Check Unit (FCU) with the intent of checking across all media platforms the authenticity of information related to the Government of Tamil Nadu.

What will be the functions of the Tamil Nadu FCU?

1. Checking the Authenticity of Information: It will check the accuracy of information related to the announcements, policies, schemes, guidelines and initiatives of the Government of Tamil Nadu.
2. Ability to Act on Complaints as well as take suo motu cognizance: The FCU has been given powers to act on complaints as well as take suo motu cognizance of social media posts/articles.
3. Forwarding of Complaints to Authorities: Identified complaints are then researched and verified through authentic government sources. Actionable complaints will then be forwarded to the authorities concerned to initiate legal action.
4. Dissemination of Content for generating Awareness: The FCU will disseminate creative content through its social media platforms to create awareness.

What are the issues with the FCU constituted by the government?

According to the author, these are the issues associated:

1. Unreasonable Restriction on the Freedom of Speech: The right to freedom of speech and expression under Article 19(1)(a) can be reasonably restricted under Article 19(2). However, “public interest” is not a ground under Article 19(2) to restrict the freedom of speech.
2. Requirement of Enacting a Legislation Bypassed: Restrictions under Article 19(2) can only be by way of a “law”, i.e. legislation passed by the State. Thus, just a Government Order (Executive Action) cannot impose restrictions on the freedom of speech and expression.
3. Ambiguities in the Order: The phrase “information related to the Government of Tamil Nadu” has not been defined, thereby making it vague and arbitrary. This lack of clarity might lead to action against people criticising the policies of the government.
4. Lack of Legal Remedies: It does not provide for an opportunity of legal hearing to the author of a post.
5. Undermines Separation of Power: Government has become the judge, jury, and executioner on the authenticity of any information related to themselves.
6. Limited Ability to achieve the stated Objectives: The order states that mis/disinformation, fake news, and hate speech have necessitated the creation of the FCU. However, hate speech, mis/disinformation and fake news has no direct connection with information related to the Government of Tamil Nadu, which is the focus of the FCU. Thus, it may not be a solution to curb them.

For more Issues with the FCU, read here.

For Bombay High Court’s observations on FCU, read here.

What should be done?

1. Consultations need to be held with all stakeholders including the public and social media intermediaries.
2. Measures such as support for an independent network of fact-checkers and promoting media literacy should also be undertaken.
3. International best practices such as the European Commission’s Code of Practice on Disinformation, which was brought after a broad consultative process and opinion poll, can be followed.

Question for practice:

“Freedom of speech is being eroded through twisting and turning of the law in India.” Discuss with reference to the government fact-checking unit.