Digital rights activists are criticising the recent amendment to the IT Rules 2023, which requires a government-appointed organisation to be the arbiter of whether Centre-related content is fake or not. However, lawyers are finding the current notification to be a relief, especially when compared to the draft version of the amendment that was introduced in January.
"In January 2023, the Government proposed that the due-diligence requirement be extended to include all information identified as fake by the PIB’s fact-checking unit, which was questioned by the industry participants owing to the impracticality of implementing such a measure," said Nakul Batra, partner at DSK Legal.
"Limiting the scope of such requirement, the April 6 draft notification only clarifies that such intervention by intermediaries to remove any content is limited to content that may be identified as fake, false, or misleading in relation to any business of the Central Government by the fact-checking unit," he added.
On April 6, the government notified the IT Rules 2023, stating that government will appoint an organisation to fact-check content related to the government. Minister for State in Electronics and Information Technology Rajeev Chandrasekhar said that intermediaries who refuse to take down content after being requested to do so by the fact-checking unit will lose their safe harbour.
Supratim Chakraborty, partner at Khaitan and Co said, "When the draft was brought in, the whole question was regarding whether all content would be under the ambit of fact-checking or would it be related only to government. I believe many organisations would have submitted representations regarding the same."
"And now, that part has been deleted, and they have restricted the ambit of fact-checking to only things related to the business of Central government. The previous draft would have led to a lot of ambiguity and difficulty," Chakraborty said.
However, Editors Guild of India (EGI) and digital rights groups have slammed the move, arguing that the government should not be "in the business of censorship" in any form.
"The government has given itself absolute power to determine what is fake or not, in respect of its own work, and order take down... There is mention of what will be the governing mechanism for such a fact checking unit, the judicial oversight, the right to appeal, or adherence to the guidelines laid down by Supreme Court of India in Shreya Singhal vs Union of India case... All this is against principles of natural justice and akin to censorship," EGI said in a statement.
Mishi Choudhury, the founder of digital rights group SFLC.in, said, "Government should not be in the business of censorship especially when most misinformation can be traced back to political parties and their supporters."
"These Rules, are constantly being used to expand governmental powers and control online narrative in the name of checking misinformation, especially before the 2024 general elections. This should alarm all of us," Choudhury added.
The Internet Freedom Foundation (IFF) has stated that assigning any government unit arbitrary and overbroad powers to determine the authenticity of online content bypasses the principles of natural justice, makig it unconstitutional. The notification of these amended rules cements the chilling effect on the fundamental right to freedom of speech and expression, especially for news publishers, journalists, activists, and others, it added.
IFF explained that the government-appointed fact-checking unit could effectively issue a takedown order (after identifying a piece of content as fake) to social media platforms, "potentially bypassing the process statutorily prescribed under Section 69A of the IT Act, 2000."
"Assigning any unit of the government such arbitrary, overbroad powers to determine the authenticity of online content bypasses the principles of natural justice, thus making it an unconstitutional exercise. The notification of these amended rules cement the chilling effect on the fundamental right to speech and expression, particularly on news publishers, journalists, activists, etc," IFF added.
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