Justice Gokhale's assessment of the challenge of misuse of social media falls short by failing to adequately balance the competing interests of individual rights and legitimate State interest through the principle of proportionality.
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THE Ministry of Electronics and Information Technology released the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Amendment Rules) in April last year.
One of the stated aims of the Rules is to establish a "fact check unit of the Central government". The fact-checking unit shall label online content as false or misleading thereby seeking its removal from the intermediary platform.
On non-removal, the intermediary shall lose its safe harbour protection. Two government representatives and two government-appointed experts shall comprise the FCU and will "verify only news and fact-based information and will not be empowered to screen or assess opinions presented by publications".
“The fact-checking unit shall label online content as false or misleading thereby seeking its removal from the intermediary platform.
Following the introduction of the IT Amendment Rules, a writ petition was lodged in the High Court of Bombay, wherein the petitioners contested that the Rules violated Section 79 of the Information Technology Act, 2000 which provides safe harbour protection to intermediaries against malicious content generated by third parties.
Moreover, the infringement of the right to equal protection of the law under Article 14 and the right to free speech under Article 19(1)(a) and 19(1)(g) was also challenged, the thrust of which was the government appointing a fact-checking unit for identifying "fake, false or misleading" information.
The petitioners argued that the fact-checking unit lacks transparency, vests excessive power in the government, and could stifle legitimate expression. The lack of clear definitions and safeguards surrounding the FCU's operations was emphasised, raising concerns about potential misuse and censorship.
In the split verdict, where Justice G.S. Patel struck down the amendment, Justice Neela Gokhale upheld the government's authority to flag information as "false, fake or misleading" related to the "business of the government" leading to its removal from platforms, arguing that this power is necessary to safeguard national security and public order.
This justification relied on the principle of "parens patriae"— granting the State a role in protecting citizens, in this case shielding them from misinformation.
However, critics fear the consequences of the judgment. Firstly, it vests unchecked power in the hands of the government, blurring the lines between regulating harmful content and controlling the online narrative.
The lack of clear definitions of 'false' and 'misleading' further amplifies this concern, leaving room for potential misuse and stifling dissent. Secondly, the ruling seems to heavily favour State intervention, potentially neglecting the crucial balance between government objectives and individual rights.
While acknowledging the potential for social media platforms to worsen societal discord and erode trust in information sources through the dissemination of false information, we argue that Justice Gokhale's assessment of this issue is deficient in adequately balancing these competing interests, particularly in relation to the freedom of expression, which could be better addressed through appropriate application of the principle of proportionality.
“The justification relied on the principle of "parens patriae"— granting the State a role in protecting citizens.
In the evaluation of proportionality of State action, we place our arguments on the Puttuswamy test for proportionality, which requires that for any State action to be considered valid, it must satisfy four key criteria: (i) Legitimate State aim, (ii) suitability, (iii) necessity, and (iv) balancing (proportionality stricto sensu).
For these prongs, the government's main argument posited that combating fake news serves the public interest, given its impact on national security and public order.
Examples of misinformation were cited by the government (page 38) to underscore the clear and tangible threat to the country's security, thereby justifying the need for regulation. Justice Gokhale finds credence in these arguments, observing that social media platforms like Facebook have become channels for disruptive ideologies and voices (page 56).
She notes that such news, when disseminated widely, can foster social discord and polarisation (page 58), necessitating the removal of such news. Thus, in her opinion, a provision enabling the removal of such news would pass the tests of both the Legitimate State aim and suitability prongs since the Rule has a reasonable nexus with the aim of protecting national security and potential public order concerns (pages 56–58).
Justice Gokhale's ratio stems from an assumption that the dissemination of any piece of fake news poses a clear and specific danger, potentially leading to polarisation in the Indian landscape, squarely bringing it within the contours of Article 19(2) of the Indian Constitution.
However, this presupposition is flawed. Legitimate State aim to combat fake news, as seen from her dicta, stems from the inflammatory potential that these news items may entail (when it poses a clear and present danger to public safety or order).
While it is true that speech can be curtailed for its inflammatory potential, we must emphasise that any restrictions on speech, including the removal of fake news, must be strictly grounded in Article 19(2).
“Social media platforms have the potential to exacerbate societal discord and undermine public trust in information sources by enabling the widespread transmission and dissemination of false information.
Article 19(2) outlines eight distinct grounds upon which speech can be restricted. However, conflating mere falsity with these justifications for regulation represents a dangerous oversimplification and a massive jump from the law. Not all instances of 'fake news' carry equal weight, nor do they inherently pose risks to public order or national security.
Consider the contrasting narratives surrounding Covid death tolls. In early 2022, the World Health Organization (WHO) released global and nation-specific estimates placing excess mortality and deaths at four million by year-end. This starkly contrasted with the Indian government's official figure of nearly 480,000 deaths.
While some might label the WHO estimate 'fake news' due to its discrepancy, dismissing it solely for not matching the government narrative is deeply concerning.
This example highlights the critical distinction between genuine misinformation and simply competing claims. The WHO estimate, despite differing from the official figure, lacks inherent inflammatory intent and poses no demonstrable threat to public order or national security.
Removing such content solely because it contradicts the government narrative sets a dangerous precedent, potentially silencing legitimate dissent and jeopardising the very foundation of a free and open society.
This exercise of the government would amount to adding fake news as a criterion under Article 19(2), which is prohibited per Sakal Papers Pvt Ltd and Ors versus Union of India (1962). The judgment in that case established that limitations on speech must adhere strictly to the conditions outlined in Article 19(2), without room for the incorporation of any supplementary grounds.
The necessity limb requires that amongst the two means that can promote the State's aim to the same extent, the one that is the less intrusive of rights should be chosen.
Justice Gokhale, however, in her opinion, does not assess the possibility of the availability of alternate, less-restrictive means that could further the same goal of the government.
“While it is true that speech can be curtailed for its inflammatory potential, we must emphasise that any restrictions on speech, including the removal of fake news, must strictly adhere to the specific grounds outlined in Article 19(2).
Submissions by the parties centred on the functionalities of the Press Information Bureau (PIB), an organisation affiliated with the government responsible for conducting fact-checking activities on its behalf.
The court also acknowledged the mission of the PIB, which aims to maximise governance effectiveness through communication and serves as a fact-checking unit with the stated objective of deterring creators and disseminators of misinformation (page 45).
Commentators view it as a viable alternative mechanism already in existence to achieve the same objective. However, Justice Gokhale's opinion fails to evaluate this aspect. It does not assess whether the operations of the PIB could potentially serve as the least restrictive measure in combating fake news.
Justice Gokhale, in the assessment of this limb, had to look out for any disproportionate impact and had to do a balancing exercise on the competing rights of the people against countervailing State interest.
The scope of the analysis was limited to the point of whether deletion of 'fake' content could impact the corresponding right of the people to free speech at a disproportionate level, and whether such actions of the State of restriction on speech are reasonable enough to be not considered excessive.
The word 'fake news' is not defined in the amended clause. Petitioners argued that without a clear definition and granting the government unchecked power to label information as fake, there is a risk that the government may become a judge, leading to censorship and silencing dissent.
However, Justice Gokhale approves of the idea of not defining what constitutes 'fake news', by observing that it has to be taken in the ordinary meaning of its words and comments which are 'objectively' fake shall have to be taken down (page 47).
She opines that in any scenario, the government is inherently well-equipped to discern what constitutes fake news, given its intimate understanding of governmental affairs (page 26). Further, she also holds that the mere possibility of misuse of legislation cannot be a ground to invalidate legislation.
This situation highlights a gap regarding the vagueness doctrine within the Indian legal context. In Shreya Singhal versus Union of India, the court established that if a Section of law fails to provide reasonable standards for defining a term within an offence-creating clause, and if there is no clear guidance, then that Section should be invalidated as arbitrary and unreasonable.
“Submissions by the parties centred on the functionalities of the Press Information Bureau (PIB), an organisation affiliated with the government responsible for conducting fact-checking activities on its behalf.
To elucidate this better, let us revisit the example mentioned in the legitimate State aim and suitability prong, about the variance in data released by the government of India and the WHO.
The data of the WHO is subject to its own methodologies and interpretations, which can include subjective analysis. Any dissenting viewpoints or alternative narratives might be labelled as 'misleading' by the government, thus potentially limiting public discourse.
This situation essentially compels the general populace to heavily depend on government-provided metrics.
With no stated guidelines, norms or prescriptions on how this identification is to be conducted, there would be uncertainty about whether the factual material against which the fact-checking unit would evaluate information would itself be rigorously tested for truthfulness and accuracy.
Justice Gokhale's opinion lacks an examination of whether a fact-checking unit could assess the accuracy of the information, exacerbating concerns about the reliability of the process.
All this builds upon the potential for misuse of the amendment, which is an important factor in assessing the proportionality of the measure.
To understand the possible degree of abuse, the incorporation of the aforementioned safeguards is integral. In Ramesh versus UP, the court balanced individual rights and competing State interests by demanding that the State incorporate certain safeguards.
Justice Gokhale's evaluation suggests that IT Amendment Rules contain sufficient statutory safeguards (page 29). Rule 3(2) establishes a grievance redressal mechanism within intermediaries, comprising a grievance officer and Rule 3(A) an appeals process to a grievance redressal committee, which is notified by the Union government. This mechanism being obligated to address complaints from aggrieved individuals within a specified timeframe will ensure that the content of the users is not taken down de hors any procedure.
This assessment of these Rules is deficient. An appeals process only provides redress against the decision; there must exist meaningful safeguards against abuse in the operation of the Rule. For example, there is no mandate for the government to provide a reasoned Order, which renders it impossible for individuals to raise grievances through representations.
In any case, there is no disclosure regarding the evidence relied upon to justify the takedown of user content deemed false by the government.
Considering that the grievance officer lacks access to the material utilised by the fact-checking unit, it will render them unable to take any meaningful action in response.
“As Justice Oliver Wendell Holmes Jr famously remarked, "The best test of truth is the power of the thought to get itself accepted in the competition of the market.
With the unbridled power that comes as a consequence of not defining crucial terms such as 'fake news', there is an imminent possibility of government intervention in legitimate exercises of freedom of speech.
Justice Gokhale has endorsed the position that the mere possibility of abuse does not automatically render legal provisions unconstitutional and that if there is abuse, the individual is free to invoke legal remedies to save themselves.
Commentators state this rationale falls afoul of the proportionality standards since abuse seldom occurs in direct defiance of the law. More often than not, it occurs within the framework of the law, exploiting its ambiguities and loopholes that grant excessive discretion to the executive branch.
In Ramesh Chandra versus State of UP, the court places the burden firmly upon the State to affirmatively mitigate possible abuse (para 51). Thus, it is crucial to recognise that the potential for abuse in law, as highlighted in the balancing prong of the proportionality test, is a good ground for challenging its constitutionality.
Upholding the position of not defining what constitutes 'fake news' will leave the ground for ample misuse and create an imperative imbalance between people's free speech rights and legitimate State interests. Larger concerns, regarding the accuracy of such laws and the safeguards provided therein, remain unaddressed.
As Justice A.S. Chandurkar of the Bombay High Court is set to preside over hearings on February 28 and 29, and March 1, 2024, to address petitions challenging the IT Amendment Rules, it is imperative to revisit the proportionality analysis, ensuring that any measures implemented to combat misinformation are transparent and respectful of the fundamental rights enshrined in the Indian Constitution.