Concerns about govt.’s fact check unit

Why in the News?

Recently, the Bombay High Court has reserved its verdict relating to challenging of the constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules).

IT Rules, 2023:

1. The Rules permit a Fact Check Unit (FCU) of the Union Government to identify “fake or false or misleading” online content “related to the business of the Central Government” and require its removal on demand.
2. This was brought in through 2023 IT Rules which amended the 2021 IT rules.
3. Changes to Rule 3(1)(b)(v) of the IT Rules, 2021 which deals with responsibilities of intermediaries.
   1. The intermediaries have to make “reasonable efforts” to ensure that users do not “host, display, upload, modify, publish, transmit, store, update, or share any information” which is “identified as fake or false or misleading by a fact check unit of the Central government” in respect of “any business of the Central government.”
   2. Non-compliance with the above provision can attract risk of losing the safe harbour protection provided under Section 79 of the IT Act, 2000 to intermediaries.
   3. The safe harbour safeguard exempts intermediaries from liability for any third-party information made available or hosted by them.

Why has FCU provision been challenged:

1. The provision shall enable government-led censorship online.
2. Government shall turn out to be the “prosecutor, the judge, and the executioner” of what constitutes the ‘truth’ online.
3. But govt. contended that the FCU will only notify contents that are fake, false, or misleading to intermediaries or online platforms, and that intermediaries can choose to take it down or leave it up with a disclaimer.

What did the High Court say?

1. The amended Rules lack necessary safeguards, no matter how well-intentioned the rules are.
2. The Rules do not seem to offer protection for fair criticism of the government.
3. The term “any business of the Central government,” is an ambiguous term and wondered if speeches made ahead of the 2024 Lok Sabha elections would fall within its ambit.
4. It held that if the consequences of a law are unconstitutional, struck down no matter its good motive.
5. A judge held that the amendment violates Article 14 of the Constitution by discriminating between false news about the government and other false news.
6. It questioned the sudden need for a FCU pointing out that the Press Information Bureau (PIB) has been efficiently fact-checking for years.
7. Terms such as “fake, false, and misleading,” can lead to subjective interpretation i.e., what is misleading for one may not necessarily be misleading for another. 
8. There is no recourse or remedy recommended for the user in the new rules after the post has been removed or whose account has been suspended by the intermediary after being flagged by the FCU.