Bombay High Court Strikes Down IT Rules on Fact Checking

Context:

The Bombay High Court recently invalidated the Amended Information Technology Rules, 2023, which had enabled the central government to establish a Fact Check Unit (FCU). This unit was intended to detect and address fake, false, and misleading information about the government on social media platforms.

Relevance:

GS II: Polity and Governance

Dimensions of the Article:

1. High Court’s Observation on the Fact Check Unit (FCU)
2. What is the Fact Check Unit (FCU)?
3. About Information Technology Amendment Rules, 2023
4. Concerns regarding IT Rules, 2023

High Court’s Observation on the Fact Check Unit (FCU):

• Violation of Constitutional Rights:
  • The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 were deemed in violation of Article 14 (right to equality), Article 19 (freedom of speech and expression), and 19(1)(g) (freedom of profession) as per the Indian Constitution.
• Ambiguity in Definition:
  • The terms “fake” or “misleading” news remain unclear, lacking precise definitions.
• Absence of a “Right to Truth”:
  • Since no legally recognized “right to the truth” exists, the state isn’t mandated to ensure that only information verified by the FCU is shared with citizens.
• Proportionality Standard:
  • The court noted that the measures proposed by the FCU do not meet the necessary standard of proportionality.

What is the Fact Check Unit (FCU)?

• Purpose:
  • The FCU is tasked with combating misinformation, especially content related to the Indian government.
• Main Function:
  • The FCU’s primary role is to verify facts and ensure that accurate information is disseminated in public discourse.
• Establishment:
  • In April 2023, the Ministry of Electronics and Information Technology (MeitY) established the FCU by modifying the Information Technology Rules, 2021.
• Supreme Court Stay:
  • In March 2024, the Supreme Court issued a stay on the establishment of the FCU under the Press Information Bureau.
• Government’s Stance:
  • The government defended the creation of the FCU, arguing that it serves to curb the spread of misinformation and is one of the least restrictive approaches.
• Enforcement:
  • The FCU will oversee content adjudication, and non-compliance by intermediaries with its guidelines may lead to legal action under Section 79 of the IT Act, 2000, which addresses the violation of safe harbour provisions.

About Information Technology Amendment Rules, 2023

The Information Technology Amendment Rules, 2023 have several provisions aimed at regulating online content and activities. These rules include:

• No platform can allow harmful unapproved online games and their advertisements.
• Sharing false information about the Indian government is prohibited as confirmed by a fact-checking unit.
• Platforms should make reasonable efforts to not host content related to the Central Government that is identified as fake or misleading by a fact-check unit.
• Online gaming platforms will have to register with a Self-Regulatory Body (SRB) to ensure the games are permissible.
• Online games should not involve gambling or betting elements and should comply with legal requirements, standards, and safety precautions such as parental controls.
• If any information is marked as fake, intermediaries will be required to take it down, or they risk losing their safe harbour protection.
• Social media sites will have to take down such posts, and internet service providers will have to block URLs of such content.

Key IT Rules of 2021:

• Social media platforms must exercise greater diligence with respect to the content on their platforms.
• Intermediaries must remove or disable access within 24 hours of receipt of complaints of content that exposes private areas of individuals, shows individuals in full or partial nudity or in sexual act, or is in the nature of impersonation including morphed images, etc.
• Social media platforms must ensure that their privacy policies educate users about not circulating copyrighted material and anything that can be construed as defamatory, racially or ethnically objectionable, paedophilic, threatening the unity, integrity, defence, security or sovereignty of India or friendly relations with foreign states, or violative of any contemporary law.

Concerns regarding IT Rules, 2023

The Information Technology Amendment Rules, 2023 have raised concerns about the potential for government censorship and arbitrary exercise of power.

Lack of clear definition of “fake news”

• The amendment fails to define “fake news”, leaving room for arbitrary determination by the government’s fact-check unit.
• The phrase “in respect of any business” gives the government unchecked power to decide what content can be accessed online.

Concerns about arbitrary power and censorship

• Intermediaries are required to remove information deemed false by the Fact Check Unit, effectively leaving the state as the sole determiner of what is true or false.
• The IT Rules give the government the power to decide what information is bogus and exercise censorship by compelling intermediaries to take down posts deemed fake or false.

Shreya Singhal vs Union of India (2015) case

• The Supreme Court held that a law that limits speech cannot be vague or over-broad.
• The lack of clear definitions and guidelines in the IT Rules, 2023 raises concerns about potential violations of free speech and expression.

-Source: The Hindu