The Union government, on Wednesday, 7 June, told the Bombay High Court that it will not notify the formation of the proposed fact-checking body under its amended Information Technology Rules to identify and flag news it considers fake, until 10 July.
According to Rule 3(i)(II)(C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, the government’s fact-checking unit is authorised to identify “fake or misleading news” related to government policies and more.
The Editors Guild of India, an association dedicated to safeguarding press freedom, and the Association of Indian Magazines, a group of publishers, filed separate petitions on Wednesday, challenging the amendment to the IT Rules that grants the Union government the power to identify fake news about itself on social media and seek its take-down.
The Editors Guild filed the petition challenging the validity of this provision of the IT Rules Amendment, 2023, for being ultra vires the Information Technology Act, 2000 (IT Act, 2000), and violating the right to freedom of speech and expression.
Related: ‘Centre determining fake news will result in press censorship’
The petition
Stand-up comedian Kunal Kamra had earlier challenged the amendments in Bombay High Court.
The division bench comprising Justices Gautam Patel and Neela Gokhale associated the two petitions with the plea filed by Kunal Kamra and postponed the final hearing of the cases to 6 July.
Additionally, the Union government stated that it would refrain from notifying its “fact-checking unit” (FCU) under the amended rules until 10 July. The court noted that the rules cannot be implemented without the FCU.
The court instructed the Centre to submit its response to all three petitions by 20 June and provide a copy to the opposing party. The petitioners were granted permission to file their rejoinders by 28 June The matter has been scheduled for final hearing on 6 and July.
The petition filed by the Association of Indian Magazines received assistance from the Internet Freedom Foundation during its drafting.
Editors Guild of India stand
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Amendment Rules, 2023) were notified by the Ministry of Electronics and Information Technology (MeitY) on 6 April.
Bombay HC issues notice writ petitions by the Editors Guild challenging amendments to IT Rule 2021, which allowed a govt constituted “fact checking unit” sweeping powers for ordering takedown of content deemed “fake or misleading”. Stays the rules till July 10 pic.twitter.com/WoB2rVgVi0
— Editors Guild of India (@IndEditorsGuild) June 7, 2023
“Along with various regulations concerning online gaming, the amendment also grants authority to a “fact-check unit of the Central Government” to categorise and remove any online content pertaining to “any business of the Central Government” that is deemed “fake, false, or misleading,” said Editors Guild of India on Wednesday.
It further added that the effect of the Impugned Rule is that the moment the “fact-check unit of the Central government” disputes the truth/veracity of a news item regarding “any business of the Central Government”, the fact of such disagreement alone obliterates the publisher’s freedom to publish and citizen’s right to access such information.
The Editors Guild had raised its concerns in its statement dated 7 April, stating that “amendments to the IT Rules will have deeply adverse implications for press freedom in the country”.
The amended rule
The Union government amended the rules to prohibit dissemination of news content that has been flagged as “fake” by fact-checkers at the Press Information Bureau (PIB), which operates under the Ministry of Information and Broadcasting.
The amended Rule 3(1) (b) (v) reads:
3(1) Due diligence by an intermediary: An intermediary, including [social media intermediary, significant social media intermediary and online gaming intermediary], shall observe the following due diligence while discharging its duties, namely…
(b) the intermediary shall inform its rules and regulations, privacy policy and user agreement to the user in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice and shall make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that . . .
. . . (v) deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature [or is identified as fake or false by the fact check unit at the Press Information Bureau of the Ministry of Information and Broadcasting or other agency authorised by the Central Government for fact checking or, in respect of any business of the Central Government, by its department in which such business is transacted under the rules of business made under clause (3) of article 77 of the Constitution].
Earlier, the clause only covered deceiving or misleading readers about the origin of the message or knowingly and intentionally communicating any misinformation or information which was patently false and untrue or misleading in nature.
Related: Telangana registers most fake news cases in country: NCRB
Can government be a fact-checker?
While the government debunking falls claims is laudable, the record of its primary fact-checker, the PIB, has been less than glorious.
As this report in the the online media-focused portal Newslaundry noted, “it is rather awkward” that a government has assigned an agency to “fact-check those who tend to call it out”.
The report referred to International Fact-Checking Network (IFCN) which states that fact-checkers must have “a commitment to non-partisanship and fairness” and do not “unduly concentrate on any one side”.
As the report added: “The PIB does not meet this criteria. Most of its ‘fact-checks’ are simply denials of media reports that are critical of the government’s (claims).”
The report further added: “(The PIB) does not understand the difference between ‘refutation’ and ‘repudiation’. To repudiate is to deny and reject, but to refute is to disprove. A repudiation requires a PIB babu to prepare a ‘fake news’ graphic for Twitter, but refutation comes with the heavy duty of painstakingly demonstrating a claim to be false. This sole process is why many decent journalists earn wages, however meagre.”
