(This article was originally published on 10 April 2023 and is being republished from The Quint's archives after it was reported that the IT Ministry will not notify a fact-checking unit under the new IT Rules until 5 July.)
Would you like to watch a cricket match in which a player gets to decide whether he is out or not? Or one in which the vice-captain of a batting team gets to be the scorekeeper? Or a football game in which the linesman happens to be the coach of a playing team?
Sounds odd or crazy?
In which case, you should start wondering how the Press Information Bureau (PIB), an arm of the government's Information and Broadcasting Ministry, can decide to ask a social media site to take down a post because it does not have its facts right.
This admittedly noble goal of fact-checking and fighting fake news is the domain of journalism. For a government arm to abrogate to itself the powers to do it because it makes or administers laws, is flawed in a democracy where there is supposed to be a separation of powers between the executive (constitution-speak for the government), legislature, and the judiciary.
Fact-checking and fighting fake news is the domain of journalism. For a government arm to abrogate to itself the powers to do it because it makes or administers laws, is flawed.
By making platforms extra accountable, the government as it is, treads on the toes of the Constitution that provides for free speech.
Any word like "misleading" being used in a fact-checking context gives the government sweeping powers to take down anything that seems to be harming its interests—or that of the ruling party.
Social media platforms, when they require policing, must be subject to judicial supervision that would include the government as a subject, not an agent of direct or appointment-oriented supervision.
One could argue that the BJP government's attempt to impose a fact-checking unit is a backdoor method to re-introduce the now-defunct Section 66A.
Govt’s Content-Policing Strategy
Last week, the Ministry of Electronics and Information Technology (MeitY) notified amendments to the Information Technology (IT) Rules, 2021, that mandates media and social media platforms to take down government-related content marked as "false, fake or misleading" by the Centre. Furthermore, the plan is to make media platforms lose safe harbour protection under the IT Act of 2000 if they don't comply.
Section 79 of the Information Technology Act protects intermediaries such as telecom service providers and even cyber cafes protection against any third-party content because they did not create or own it—much like how a crime inside a hotel room is not something you can hold a hotel owner accountable for. But IT rules framed in 2018 are controversial because they are broadly worded to include powers for government agencies to take down content.
By making platforms extra accountable, the government as it is, treads on the toes of the Constitution that provides for free speech. Free speech, theoretically, the freedom of expression to all including citizens, filmmakers, artists, and writers, and in India, the freedom of the press or news media is only a subset of this freedom.
Notably, constitutional freedom includes the freedom to share fantasies, ideas, creative expressions, and interpretations—and that might incidentally include stuff that some may perceive as propaganda, exaggeration, or simply a lie.
The Looming Threat on Press Freedom Intensifies..
Here is where any attempt by the government to be a super gatekeeper on its own content becomes suspicious on three counts.
First, the government does not have judicial powers over something that is a fundamental right to be supervised by none less than the Supreme Court or courts functioning under its supervision.
Second, there is a conflict of interest where the government itself judges its own content, much like a player keeping scores in a game in which she is playing herself.
Thirdly, any word like "misleading" being used in a fact-checking context gives the government sweeping powers to take down anything that seems to be harming its interests—or in plain speak, the interests of the current ruling party.
No wonder then that organisations like the Editors Guild of India are incensed about this policing attempt by the government. To be fair, the government only says it will flag central government-related content but that is still questionable because anything happening in a country can be deemed as 'government-related'. Moreover, freedom of the press typically means even the government's claims are supposed to be checked for accuracy and interpreted suitably by journalists.
"Shooting the messenger" is often an expression used to describe a crackdown on journalists. If a message is shot down in social media by asking an intermediary to do it, it could well mean a curb on the messenger—and therefore an infringement of the right to freedom of expression.
PIB Unlikely To Be Govt Fact-Checker
Minister of State for Electronics and IT, Rajeev Chandrasekhar, says there is no violation of the fundamental rights that empower media in the invocation of IT Rules but intervention by any fact-checking agency, as long as it is "within" the PIB as he observes himself, will be a case of a subordinate judging a manager. Who will speak truth to power if those in power decide what is the truth?
The minister later clarified that the Union government is yet to decide on its steps and the PIB is not necessarily the agency to do the policing of content, but there is a lot of doubt lingering in the air with no clarity from the government that it will not set up or supervise any such agency.
Like the Central Bureau of Investigation and the Enforcement Directorate, any agency that is set up or supervised by the government in policing legal violations related to media content is bound to be viewed with suspicion, to say the least.
Social media platforms, when they require policing, must be subject to some kind of judicial supervision that would include the government as a subject, not an agent of direct or appointment-oriented supervision.
In the same week as the minister spoke of IT Rules, the Supreme Court of India pronounced a landmark verdict in the MediaOne case where the Malayalam news channel was denied a licence renewal on the ground that its content threatened "national security". The case is proof that the government (any government) can use some provision or the other to try and restrict media entities not suited to its interests.
It is also pertinent to note that the Supreme Court had in 2015, struck down as unconstitutional, the much-abused Section 66A of the IT Act of 2000 intended to address cases of cybercrime with the advent of technology and the internet.
The Section criminalised sending of offensive messages through a computer or other communication devices and included in its ambit, false or misleading information. You could argue that the BJP government's attempt to impose a fact-checking unit is a backdoor method to re-introduce the now-defunct Section 66A.
Is it time for the news media to knock at the doors of the Supreme Court of India again? Only time will tell but the government owes everybody an explanation.
(The writer is a senior journalist and commentator who has worked for Reuters, Economic Times, Business Standard, and Hindustan Times. He can be reached on Twitter @madversity. This is an opinion article and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)