The constitutionality of the Union government's fact-checking unit was challenged this year before the Bombay High Court, which is expected to pronounce a judgment on December 1. Following this, the Madras High Court awaits the Order to decide the fate of the Tamil Nadu Government's fact-checking unit.
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THE Tamil Nadu government has passed an Order establishing a fact-checking unit for the state.
This comes on the heels of the Union Ministry of Electronics and Information Technology notifying the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.
The Union government was set to establish a fact-checking unit for identifying 'fake', 'false' or 'misleading' content with respect to 'any business' of the Union government as per the Rules.
On October 6, the Tamil Development and Information (Advertisement) department issued a Government Order, stating that the fact-checking unit would check the "authenticity" of all information related to the government across all media platforms.
The Order states that the objective of the fact-checking unit is to "act as a deterrent to the perpetrators or creators and disseminators of fake news and misinformation [and hate speech pertaining to the government]."
Pursuant to this, the government will establish a 'central task force' which will take up complaints related to the government.
The central task force will have suo moto powers to take cognisance of complaints and information requiring fact-checking.
According to the Order, for all the information and complaints received by the central task force, it will first be ascertained whether it falls within the ambit of the fact-checking unit. This will be researched using "various fact-checking tools and verified authentic government sources of information".
Verified information will then be split into "actionable" and "non-actionable" pools. For the information in the actionable pool, the central task force will consult with the advisory team from the police and legal departments and will forward the information to the concerned authorities to initiate "legal actions".
Although the proposal to establish a fact-checking unit was given by the director of information and public relations, the unit will come under the authority of the department of special programme implementation.
A petition has been filed before the Madras High Court challenging the constitutionality of the fact-checking unit.
Apart from Tamil Nadu, Karnataka and Uttarakhand have shown their intention to set up a fact-checking unit.
It should be noted that for more than a century, the Press Information Bureau (PIB) has been presenting the governments' version of facts and refuting claims it considers invalid or mendacious. In fact, in 2019, the PIB had also established a fact-checking unit. So, one must ask why the governments are deciding to have other fact-checking units, particularly ones with a mandate of punitive censorship?
An amendment to Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 earlier this year allowed the Union government to set up a fact-checking unit.
The amendment was challenged before the Bombay High Court by a petition filed by stand-up comedian Kunal Kamra, who argued that his job as a satirist would be defeated if his work was scrutinised and censored by the government.
Petitions challenging the amendment have also been filed by the Editors Guild of India and the Association of Indian Magazines.
Kamra alleged that the amendment violates Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of India. He also claimed that the amendment is ultra vires Section 79 (exemption from liability of intermediary in certain cases) of the Information Technology Act, 2000 (IT Act), as it deprives intermediaries of the safe harbour immunity under Section 79 on grounds beyond Article 19(2) of the Constitution.
Intermediaries are online services that offer a neutral platform through which persons may interact with each other over the internet.
The safe harbour safeguard exempts intermediaries from liability from any third-party information made available or hosted by them, provided they observed "due diligence" standards while performing their obligations under the IT Act.
The petitioner claimed that the amendment is vague and constitutes an unreasonable restriction on freedom of speech and expression under Article 19(1)(a) of the Constitution by making the "State the sole arbiter of truth or falsity of speech.
That is why it also goes against the directions of the Supreme Court in Shreya Singhal versus Union of India (2015) which held that the restrictions on free speech on the grounds of over-breadth or vagueness are unconstitutional.
The non-governmental organisation, Internet Freedom Foundation (IFF), termed this amendment as causing "chilling effect on the fundamental right of speech and expression, particularly of news publishers, journalists, and activists etc."
It is also important to note that reasonable restrictions on free speech can only be imposed through a law and not an executive Order, as held in Emmanuel versus State of Kerala (1986).
The amendment does not conform to the statutory process of blocking content as regulated under Section 69A (power to issue directions for blocking public access to any information through any computer resource) of the IT Act, 2000.
According to Section 69A, blocking of content can only be done by the designated officer either after complying with the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 or pursuant to an Order passed by a competent court.
Prateek Waghre, policy director at the IFF, told The Leaflet that the fact-checking unit would essentially serve as a "de-facto takedown Order" without complying with the process prescribed by law.
He also warned that one of the consequences of the fact-checking unit could be that the social media intermediaries will start complying with it mechanically.
The respondent argued that the purpose of the fact-checking unit is to notify social media intermediaries of fake information so that it could be taken down. This means that the intermediaries exercise their right to take down content or not.
On March 11, the Bombay High Court's division Bench of Justices G.S. Patel and Neela Gokhale directed the Union government to file a reply and disclose the factual background that necessitated the amendment.
It asked the government to submit its response on why the amendment should not be stayed by the court. The government submitted an undertaking that the amendment would not be effective until the judgment was pronounced.
During the hearing, the court made an oral remark that the amendment gives "unfettered powers" to the government in regulating the content on the internet.
On September 29, the high court reserved its judgment which is expected to be pronounced on December 1.