Govt's proposal to remove content that PIB marks fake leaves scope for misuse, is unconstitutional: Experts

Fake News

Lawyers and digital rights groups are raising concern over Ministry of Electronics and Information Technology's proposal that will force content news items identified as fake or false by the Press Information Bureau's fact check unit to be removed from social media platforms.

While one lawyer Moneycontrol spoke to said the proposed amendments to the IT Rules were unconstitutional because freedom of speech and expression can be infringed upon through these rules, others said that the wording of the draft amendment may leave scope for it to be misused.

“The Central Government is designating its press relations office — the Press Information Bureau — as the online arbiter of what is true and what is false,” said Raman Jit Singh Chima, Asia Pacific Policy Director and Senior International Counsel at Access Now. “This will give them the power to decide what content stays up and what is taken down, without any parliamentary authorisation or legal authority whatsoever.”

Software Freedom Law Centre's legal director Prashant Sugathan also criticised the manner in which this proposed amendment has been introduced. The amendment was introduced by the government while it extended the timing for submitting consultation for the draft online gaming regulations in the IT Rules.

"Changes being made in a text put up for consultation midway through the consultation process is also not a healthy trend," Sugathan said.

The recent proposal introduced in the section 'Due Diligence by Intermediaries and Grievance Redressal Mechanism' of IT Rules 2021, says that intermediaries "shall make reasonable" efforts to not "host, display, upload, modify, publish, transmit" such information on platforms such as Twitter, Facebook and YouTube.

The intermediaries are required to do the due diligence for them to enjoy safe harbour provisions of the IT Act 2000, wherein intermediaries enjoy legal immunity from third party content they host.

Earlier in the day, Editors Guild of India also objected to the draft rules saying that the determination of fake news cannot be in the sole hands of government and that it will lead to censorship of press.

The problems

Phrasing of the amendment: "A very strict fake news law is the need of the hour, but the phrasing of this draft notification indicates that, in the future, PIB may not be the only entity with the authority to declare content to be "false"," Vinay Butani,  Partner, Economic Laws Practice said.

"The Centre may give permission to any of its agents to examine any content pertaining to "any business of the Centre." This language on this face of it makes it arbitrary and therefore could be used in several ways by which this can be misused," Butani explained.

Concentration of power: Similarly, Sugathan of digital rights group SFLC.in said, " The appellate body for grievance redressal and the provision for PIB fact check all shows more powers being concentrated in the Government. The PIB fact check could also lead to a situation where a government body could decide on whether a valid criticism of the Government would stay online or be taken down."

Infringement on freedom of speech: "The amended rules provide provisions for restrictions on the freedom of speech and expression. Our constitution prohibits arbitrary and unreasonable restrictions. Censorship is the highest form of media restriction and... a blanket ban on false news is a unconstitutional amendment," Anushkaa Arora, Principal & Founder, ABA Law Office said.

“Content governance rules directly impact the right to free expression and the very foundation of an open, safe, and free internet,” said Namrata Maheshwari, Asia Pacific Policy Counsel at Access Now. “Suddenly introducing such a vague proposal without prior public engagement, and leaving only one week for feedback, flies in the face of democracy and erodes public confidence in the consultation process.”

In contravention with principle of natural justice: - Kritika Seth, Founding Partner, Victoriam Legalis – Advocates & Solicitors highlighted a possible problem through a situation if and when the draft regulation comes into force.

Seth said a government department or body may itself be in power to determine whether a certain information is fake or false.

"In such a scenario, if a body or a person is directly or indirectly able to influence the decision of determining something as fake or false, it may, subjects to facts and circumstances, be in contravention with principle of natural justice," said Seth.

No international precedent available

When asked whether there are similar kind of legislations present in other countries where a single authority becomes the arbiter of fake news, Arora, of ABA Law Office, said, "The takedown of ‘news’, once termed as fake by any authority does not have an international stand."

Arora explained that according to the International Covenant on Civil and Political Rights certain reasonable restrictions can be imposed on the freedom of expression. "The restrictions must be proportionate," she said.

Further she explained that international authorities and bodies have dismissed blanket ban on publication of incorrect or false statements.

"Under Joint Declaration, 2017, it was also stated that such bans are vague and ambiguous. Therefore, there is no international equivalent but there are territorial authorities for countries," she added.

Vinay Butani of Economic Laws Practice pointed towards the International Fact Checking Network, an initiative created to promote fact-checking in journalism. He pointed out that the IFCN required fact-checkers to have “a commitment to non-partisanship and fairness” so that they do not “unduly concentrate” on one side.