Fact Check Unit and Freedom of Speech

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• On March 21, the Supreme Court intervened in a significant legal matter, staying the implementation of the amended Information Technology (IT) Rules.
• These amendments had conferred authority upon the government to identify and address "fake news" on social media platforms through a designated "Fact Check Unit" (FCU).
• The Union Electronics and IT Ministry's notification of the FCU on March 20 marked a pivotal moment, establishing it as a statutory body under the Press Information Bureau.
• This move empowered the FCU to flag purportedly false information related to the central government and its agencies on social media platforms.
• The journey leading to this Supreme Court intervention is a complex narrative of legal deliberations and constitutional considerations.

The Amended Rules

• The amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, notified in April 2023, introduced a dual framework.
• Firstly, it addressed the legal dimensions of the online gaming ecosystem.
• Secondly, and more significantly, it provided a legal mechanism enabling the government to fact-check online content concerning "government business."
• The Rules mandated intermediaries, including social media platforms, to abstain from disseminating fake, false, or misleading information regarding any central government affairs.
• Concerns arose regarding the potential ramifications of granting the government sole authority to arbitrate truth in matters concerning itself. These concerns prompted challenges before the Bombay High Court.

Challenges before the High Court

• A diverse array of petitioners, including notable entities like stand-up comedian Kunal Kamra, the Association of Indian Magazines, and Editors Guild of India, contested Rule 3(1)(b)(v) of the IT Rules 2021.
• They alleged violations of several constitutional articles and statutory provisions, including Article 14, Article 19(1)(a) and (g), Article 21, Section 79, and the Information Technology Act, 2000 (IT Act).
• The focal point of contention was the expansion of the term "fake news" to encompass false information related to government business.
• The petitioners argued that this expansion could impede freedom of speech and expression, constituting a chilling effect.
• The Bombay High Court was tasked with examining whether these Rules contravened the principles of free speech and were arbitrary in nature.

High Court Ruling and Subsequent Developments

• On January 31, a division Bench of the Bombay High Court rendered a split verdict. While one Justice struck down the amended rules, another upheld them. This deadlock necessitated the involvement of a third judge to break the tie and reach a majority decision. However, before substantive proceedings could commence, the question of staying the Rules arose.
• Justice Chandurkar, the newly assigned judge, declined to grant interim stay, triggering an appeal to the Supreme Court.
• Amidst these legal maneuvers, with Lok Sabha elections looming, the Rules assumed heightened significance in shaping the government's engagement with news concerning its operations.

Supreme Court Intervention

• The Supreme Court, led by Chief Justice of India D Y Chandrachud, issued a crucial stay on the amended Rules.
• Citing the need to maintain the status quo amidst judicial deliberations, the Court suspended the implementation of these Rules until the Bombay High Court reached a definitive conclusion.
• The Court's decision to intervene raises pertinent questions regarding the judiciary's role in scrutinizing legislation and upholding constitutional principles.

Staying of a Law: Legal Implications

• The Supreme Court's authority to stay laws pending judicial review is a delicate matter, balancing constitutional scrutiny with legislative prerogatives.
• While laws enacted by Parliament carry a presumption of constitutionality, the situation is nuanced with delegated legislation like these Rules.
• The Court's decision to stay the Rules reflects a nuanced understanding of judicial review and the imperative to safeguard constitutional values.

Conclusion

• The Supreme Court's intervention in staying the amended IT Rules underscores the judiciary's pivotal role in upholding constitutional principles amidst evolving legal landscapes.
• This episode not only highlights the complexities of modern governance but also reaffirms the judiciary's commitment to safeguarding fundamental rights in the digital age.
• As legal proceedings unfold, the implications of this decision will resonate far beyond the realm of cyberspace, shaping the contours of free speech and governmental authority in the digital era.

Information Technology Rules: 2023 vs. 2021 Obligations on Intermediaries (2023) Intermediaries must not host harmful unapproved online games and their advertisements. They are prohibited from sharing false information about the Indian government, as verified by a fact-checking unit. Social media platforms and internet service providers must make "reasonable efforts" to avoid hosting fake or misleading content related to the Central Government. Self-Regulatory Bodies (2023) Platforms offering online gaming must register with a Self-Regulatory Body (SRB) to determine game permissibility. Online games should exclude gambling or betting elements and comply with legal requirements and safety measures like parental controls. Consequences for Intermediaries (2023) If any content is flagged as fake by the fact-check unit, intermediaries risk losing their safe harbor protection, necessitating its removal. Social media sites must take down such posts, and ISPs must block URLs containing such content. Key Provisions of IT Rules: 2021 Mandates social media platforms to exercise greater diligence regarding content on their platforms. Intermediaries are required to remove or disable access to content within 24 hours of receiving complaints about sensitive content. Privacy policies should educate users to refrain from circulating copyrighted or objectionable material. Concerns with IT Rules: 2023 Lack of Clear Definition: The rules do not define "fake news," granting unchecked power to the government's fact-check unit. Uncertain Criteria for Fake News: Procedures and qualifications for the fact-check unit are unspecified, raising concerns about arbitrary determinations. Information Removal: Intermediaries must remove content labeled false by the Fact Check Unit, potentially limiting free speech. Violation of SC Judgment: The rules risk violating the Supreme Court's precedent in Shreya Singhal vs. Union of India (2015) by being vague and overbroad. These concerns highlight the need for clarity and accountability in regulating online content to safeguard freedom of expression and ensure transparency.

 

PRACTICE QUESTION Q. How has the concept of freedom of speech evolved in India, and what are the challenges it faces in the digital age?