HC verdict on Fact-Check Unit- Explained Pointwise

The Bombay High Court struck down a provision in the 2021 IT Rules allowing the government to identify ‘fake news’ on social media through a Fact Check Unit (FCU). The ruling, with a 2-1 majority, deemed the amended provision of the IT Act which provided for the establishment of Fact Check Unit, as unconstitutional. 

Earlier this year, Government of India had notified the PIB’s Fact-Check Unit (PIB-FCU) under the Ministry of Information and Broadcasting (MIB) as the fact check unit of the Central Government. Ministry of Electronics and Information Technology (MeitY) had notified the PIB’s FCU as the fact check unit under the provisions of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, Amendment Rules, 2023.

What is the background of the Case?

This raised concerns over free speech and the extent of government regulation, as it positioned the government as the sole arbiter of truth regarding its own activities.

What does the Judgement of the Bombay High Court entail?

The Bombay HC held that the amended rules were unconstitutional, with a 2-1 verdict.

a. Restriction of Fundamental Rights- The majority judgement has held that the amended Rule violated Articles 14, 19(1)(a), and 19(1)(g) of the Constitution by restricting fundamental rights beyond permissible limits.

b. Vague and Misleading Terms- The verdict holds that the terms like ‘fake, false, or misleading‘ are vague and overbroad. It is not the state’s role to ensure citizens receive only ‘truthful’ information.

c. Chilling effect on Freedom of Speech and Expression- The verdict has noted that the threat to social media platforms of losing their “safe harbour” status, created a chilling effect on freedom of speech.

d. Overarching powers of the Fact-Check Unit- The verdict criticized the Fact Check Unit’s (FCU’s) power as overreaching. The verdict holds that the state classifying speech as true or false and forcing non-publication, tantamounts to censorship.

What is the PIB’s Fact-Check Unit (PIB-FCU)?

PIB’s Fact-Check Unit (PIB-FCU)- PIB’s Fact-Check Unit was established in November 2019 with a stated objective of acting as a deterrent to creators and disseminators of fake news and misinformation. It aims to provide people with an easy avenue to report suspicious and questionable information pertaining to the Government of India.

Functions/Mandate of PIB-FCU

a. The PIB-FCU is mandated to counter misinformation on Government policies, initiatives, and schemes either suo motu or under a reference via complaints.

b. The PIB-FCU actively monitors, detects, and counters disinformation campaigns, ensuring that false information about the Government is promptly exposed and corrected.

c. When this unit flags a piece of content as fake, social media platforms will have to take it down as part of their due diligence requirement under the IT Rules. Also, the internet and telecom service providers like Jio and Airtel will have to block the web link of a particular fake news information.

What was Govt’s rationale for notifying PIB’s Fact-Check Unit (PIB-FCU) as the Central Govt’s Fact-check Unit?

1. Addressing the issue of fake news- The fact-checking body can help to address the issue of fake news and misinformation on online platforms, which can potentially cause harm to society.

2. Improved accountability of Social Media Intermediaries- The notification of PIB’s Fact-Check Unit as the Govt’s Fact-checking unit will increase accountability of social media intermediaries like Facebook, Twitter etc., which will now be required to remove false and misleading content.

3. Enhancement of Cybersecurity- PIB’s Fact-Check Unit can improve the cybersecurity by preventing the misuse of online platforms for illegal or harmful activities. For ex- Regulation of Sharing of Deepfakes.

4. Prevention of Hate Speech and Violence- The Fact-Check unit seeks to ensure compliance with Indian laws like IT Act and laws related to national security. This helps to prevent the misuse of social media platforms and other digital media outlets to incite violence or spread hate speech.

What were the Concerns with notification of fact-check Unit by the Government of India?

1. ‘Chilling effect’ on freedom of speech and expression- There were concerns that PIB’s fact-check unit and its power to censor content could have a chilling effect on free speech and expression provided under Art 19(1)(a).  There were concerns that people would be hesitant to express their opinions online for fear of being censored or facing legal consequences.

2. Potential for Misuse by the Govt- The fact-check unit’s power could be misused by the government to silence dissenting voices or criticism of government actions. This could have serious implications for democracy and human rights.

3. Conflict of interest- The role played by the fact-checking unit has a significant conflict of interest as it plays the role of judge, jury, and executioner.

4. Lack of clarity on what constitutes “fake or false or misleading” information- There is lack of a clear definition of what types of information qualify as ‘fake or false or misleading‘. This lack of clarity creates ambiguity and can lead to arbitrary censorship by the government.

5. Short-circuiting established legal procedures- The notification of a fact-checking unit with powers to issue directions to take down content, short-circuit the procedures, safeguards, and conditions laid out in Shreya Singhal v. Union of India and Section 69A of the IT Act. The judgement extends the right to free speech into the online space.

What Should be the Way Forward?

1. Final Verdict of the SC- The Bombay HC Verdict in the Kunal Kamra v. Union of India (2023) case held the establishment of fact check units under the amended rules as unconstitutional. The SC must deliver final verdict on other concerns of IT Rules, such as mandates for social media platforms to establish grievance redressal and compliance mechanisms.

2. Develop a more transparent and participatory process- The government should work with civil society, media organizations, and other stakeholders to develop a more transparent and participatory process for determining what content should be considered fake or misleading.

3. Need an independent and non-partisan fact-checking body- The government should ensure that anybody tasked with fact-checking is independent and non-partisan, with clear guidelines for how decisions are made.

4. Ensure functioning according to judicial and legal guidelines- The government should ensure that any takedown requests are made in accordance with the procedures and safeguards laid out in Shreya Singhal v. Union of India or under Section 69A of the IT Act. These define and restrict the conditions under which government can take down online content.