Concerns about govt.’s fact check unit

Source: This post has been created based on the article “Concerns about govt.’s fact check unit” published in The Hindu on 12^th October 2023.

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

News: This article discusses the recent decision of the government to set up a ‘Fact Check Unit’ (FCU) – its provisions as well as the issues noted by the Bombay High Court.

The Bombay High Court recently reserved its verdict in a petition, challenging the constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.

The Rules permit a Fact Check Unit (FCU) to identify “fake or false or misleading” online content “related to the business of the Central Government” and demand its removal.

Petitioner’s argument: The petitioners contend that the provision would enable government-led censorship and empower it to be the “prosecutor, the judge, and the executioner” of what constitutes the ‘truth’ online.

Govt’s argument: Defending the provision, the government has argued that the FCU will only notify intermediaries or online platforms that the content they are hosting is fake, false, or misleading. The intermediaries can choose to take it down or leave it up with a disclaimer.

What does the amendment say?

The amendment brings about significant changes to provisions dealing with the responsibilities of intermediaries.

Intermediaries are now under obligation to make “reasonable efforts” to ensure that users do not share any information”. Which is “identified as fake or false or misleading by a fact check unit of the Central government” in respect of “any business of the Central government.”

Failure to comply will lead to losing the “safe-harbour protection” under Section 79 of the IT Act, 2000, which exempts intermediaries from liability for any third-party content on their platforms.

What issues did the High Court find with the amendment?

1) Lack of necessary safeguards: The Court observed that it lacks necessary safeguards. They do not offer protection for fair criticism of the government.

2) Ambiguous terminology: It also highlighted the ambiguity surrounding the term “any business of the Central government.”

3) Unconstitutional consequences: Court remarked that if the consequences of a law are unconstitutional, it must be done away with no matter how sound the motives were.

4) Violation of Article 14: Another argument is that it violates Article 14 by discriminating between false news about the government and other false news.

5) PIB already fact-checks: A sudden need for an FCU was also questioned; pointing out that the Press Information Bureau (PIB) has been efficiently fact-checking for years.

6) Subjectivity of provisions: The Court also said that terms in the amendments are subjective and open to various interpretations.

7) Violates the principles of natural justice: There is no provision that provides an opportunity for an aggrieved intermediary to justify or defend the flagged content.

8) Lack of remedy: The Court also said that even the user whose post has been removed or whose account has been suspended after being flagged by the FCU.