On April 6, 2023, the Ministry of Electronics and Information Technology (MeitY) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, that, besides seeking to regulate the online gaming sector, also gives the Press Information Bureau (PIB) the authority to identify fake or false or misleading online content with respect to any business of the Centre under Rule 3(1)(b)(v) of the 2023 Amendment Rules. What this means is that now, PIB has the power to take down any information that it deems fake—but that’s not all.
The cherry on this ‘amendment fudge’ is the withdrawal of legal immunity, provided by Section 79 of the IT Act, 2000, to social media platforms and intermediaries in case they do not comply with PIB’s diktat. Section 79 clearly spells out that “an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.”
The same Section 79 was read down by the Hon’ble Supreme Court in Shreya Singhal v. Union of India (2015), wherein Section 66(A) of the IT Act, 2000, was struck down by the court. The court also assured immunity to intermediaries under Section 79, unless an active role is established in the commission of an offence.
Section 66(A) criminalised the sending of offensive messages through a computer or other communication devices. The court declared Section 66(A) unconstitutional, holding that it violated freedom of speech guaranteed by Article 19(1)(a) of the Constitution. Article 19(1)(a) stipulates that all citizens shall have the right to freedom of speech and expression subject to reasonable restrictions that may be imposed under Article 19(2). The court found that none of the heads of restrictions under which free speech and expression can be curtailed had any nexus with Section 66(A).
In striking down the section, the court also invoked the cardinal principle that no one should be a judge in his own cause or be interested in its outcome. The court relied on the dictum that the authority to which the case is assigned ought to be unbiased and must abjure favouritism. It thus struck down Section 66(A) also on the ground that its unilateralism in exercise of power also violates the principles of natural justice.
The amendment in question is consistent with this regime’s proclivity to throttle free speech and regulate the flow of information. The government is aware that intermediaries cannot risk being embroiled in court processes in the event they choose to disobey the diktats of PIB in taking down content which it finds unpalatable.
Those in power find the immunity to intermediaries provided in Shreya Singhal a hindrance to their design to exclude from the public domain information that they deem unfavourable. The ostensible reason for the questionable amendment is to eliminate fake news, which is merely an excuse. The real intent behind this move is to eliminate all shades of criticism. The quest to vehemently suppress freedom of speech now includes shooting both the message and the medium. Once intermediaries fall in line, as they are bound to, any criticism of the government will be removed on grounds that it misrepresents or misleads.
Basically, the 2023 Amendment Rules empower the government to identify what it considers fake news, paving the way for further absolutism since the ‘fact-check unit’ will exercise its subjective judgement in such a determination. This is the most deeply worrying aspect of this entire charade.
We should all be worried by this development. For its part, the Editors Guild of India expressed its reservations by stating that “the government has given itself absolute power to determine what is fake or not, in respect of its own work…” and this new amendment and the fact-checking unit assumes “sweeping powers to determine what is fake or false”. By endowing such drastic power to one singular authority, the government has buried objectivity and transparency, making way for despotic decision-making, contrary to fundamental principles of governance. In the wake of this Amendment, our discussions on national issues, our criticism of the ruling regime and our participation to keep democracy robust will be held back under the guise of “fake news”.
While no one can oppose honest attempts to curb the menace of fake news and misinformation, given the track record of this government and the disdain with which it deals with the fundamental rights of citizens, it is not likely to abide by acceptable standards of assessment of information to maintain objectivity. The International Fact Checking Network (IFCN) adheres to a code of principles of which the guiding light is “a commitment to non-partisanship and fairness”. The same unfortunately cannot be said about PIB, which on many occasions in the past has simply flagged down content on the basis of it being critical of the ruling regime.
The 2023 Amendment Rules, while assigning arbitrary and discretionary power to the government without prescribing any procedures, will have a significant impact on online freedom of expression and access to online information. What constitutes fake information and what does not is another way of saying that the government is going to take down whatever information it finds going against its political grain.
With Lok Sabha elections due in 2024, this rushed up move by the government should be seen for what it is—an extreme measure to do away with any information which questions its inadequacies/missteps/failures.
Any information which puts the spotlight on this regime’s incompetence will be termed ‘fake’ through its own holier than thou ‘fact-checking unit’. Who’s going to show the king the mirror, when mirrors are banned in the kingdom?
I feel this new development should be a matter of extreme concern for each one of us—not just as public representatives, but as practitioners and consumers of democracy, where the voice of the people is cardinal.
How will the sanctity of public and individual expression be upheld when the noose of ‘fact-checking’ tightens, choking it every time the expression doesn’t align with the government’s version?
This reminds me of DaShanne Stokes’ words: “Ethics and oversight are what you eliminate when you want absolute power.”
Kapil Sibal
Senior lawyer and member of Rajya Sabha
(Tweets @KapilSibal)