Central Govt's IT Rules on Fact-Checking: The Facts, the Logic, and the Law

Cameraperson: Kushagra Srivastava

Video Editor: Purnendu Pritam

Consider this thought experiment about our class 12 board exams. We write the exam in a different school with teachers from other different schools invigilating. Why? Because our teachers have grown to care about us and they can’t be expected to act impartially and objectively.

But imagine if you were asked to somehow 'self-invigilate' or assess your own papers? How neutral or objective would you and all your classmates really be?

Now, apply the conclusions of this thought experiment to the government.

In a notification dated 6 April, the IT rules notified the IT Amendment Rules, 2023, which gives it the power to notify a fact-check unit of the Central Government that will identify fake, false, or misleading online content with respect to any business regarding itself.

Sounds a bit strange, right? Okay, so let's look at the government’s plans for our Facebook and Twitter accounts from two lenses: the logic and the law.

The Logic

In a democracy, there is supposed to be a separation of powers between the executive, legislature, and the judiciary.

So, as the board exams example tried to show, logically, the executive, that is, the government, cannot be and do everything everywhere all at once, right?

I mean, just simple logic, can the government really be the complainant in a fake news case about itself, then play the investigator, and then judge for itself whether the claim is “misleading” or “fake”?

Additionally, intermediaries, including social media intermediaries like Facebook or Twitter, risk losing their safe harbor protections if they fail to or decide against taking action on content identified as “fake” or “false” by the notified fact-check unit.

Safe harbor protection is what protects online platforms such as Facebook or Twitter from being held accountable for the content posted on them by their users.

Another problem is that the IT Rules do not define what constitutes “fake or false or misleading” information, nor do they specify the qualifications or hearing processes for a “fact check unit.”

Therefore, a word like "misleading" being used in a fact-checking context can give the government sweeping powers to take down anything that may be seemingly harming its interests, assigning guilt to speech that could otherwise be innocent and protected.

The Law

The Internet Freedom Foundation has stated that the notified amendments are in gross violation of the Supreme Court ruling in Shreya Singhal vs. Union of India (2013) which had stated: When there is no clear guidance on the matter, any Section in a law which creates an offense and which is vague must be struck down as being arbitrary and unreasonable.

This was the same landmark ruling that struck down Section 66A of the IT Act which criminalized the sending of offensive messages through a computer or other communication devices.

Experts like the journalist Madhavan Narayan opine that the BJP government's attempt to impose a fact-checking unit is a backdoor method to re-introduce Section 66A.

Additionally, the Editors Guild of India has pointed out that there is no mention so far in the rules about what the governing mechanism will be for the fact-checking unit. Will there be judicial oversight? The right to appeal? Adherence to Supreme Court's guidelines from the Shreya Singhal case?

Therefore, what appears to be most at risk here is dissent, something that our current CJI called the “safety valve of democracy.” The new rules seem to be the central government’s early steps to crack down on dissent.