People Largely Rely On Social Media For News, IT Rules Amendment In Public Interest, Won't Prevent Opinions Or Satire: Centre In Bombay High Court

The Union Government’s impending Fact Checking Unit may only direct removal of false or misleading information pertaining to Government policies and programs, not satire or artist impression, the Ministry of Electronics and Information Technology (MeitY) has told the Bombay High Court.

“It is reiterated that the role of the fact check unit is restricted to any business of the Central Government, which may include information about policies, programs, notifications, rules, regulations, implementation thereof, etc. The fact check unit may only identify fake or false or misleading information and not any opinion, satire or artistic impression,” the affidavit reads.

The affidavit seeking dismissal of stand-up comic Kunal Kamra's plea cited an MIT research paper to state that false news travelled six times faster than the truth, necessitating the 2023 amendment to the IT Rules.

The affidavit fears people acting on speculative information without an official government announcement and therefore states that it would be in public interest for “authentic information” to be ascertained and disseminated after fact checking by a government agency “so that the potential harm to the public at large can be contained.”

The amendments are saved by Articles 19(2) and 19(6) of the Constitution of India, it adds.

In his plea before the High Court, Kamra has challenged the amended Rule 3(1)(b)(v) of the IT Rules obligating intermediaries (social media platforms) to make reasonable efforts to “cause” users not to upload or share “misinformation” or “misleading information”. This departed from the earlier IT Rules of 2021, which only required intermediaries to just “inform” users of their obligation not to upload or share “patently false or misleading information.”

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 ["2023 Amendment"] further substantively amends Rule 3(1)(b)(v) wherein intermediaries are obligated of making reasonable efforts to cause users to not publish, or display information that "in respect of any business of the Central Government, is identified as fake or false or misleading” by the fact checking unit of government.

Kamra said he is a political satirist who relies on social media platforms to share his content and the Impugned Rules could potentially lead to his content being arbitrarily blocked, taken down, or his social media accounts being suspended or deactivated, thereby irreparably..."

He claimed this amendment would result in the intermediary simply taking down the content, if the government’s FCU identified it as “fake”, making the content unavailable in India, de-activating accounts or flagging it as fake. He sought to quash the amendment and a stay on them in the interim.

During the last hearing the court directed MeitY to respond to Kamra’s plea and also state their reasons behind the amendment.

MeitY’s affidavit is divided in several parts. At the outset it calls the petition pre-mature as the FCU and its rules are yet to be notified and “no directions to any intermediary have been given by the Answering Respondent (MeitY) to remove any information under the impugned Rule.”

Reasons For the Rules

The MeitY cited the 2012 judgement in Shreya Singhal vs. Union of India reading down Rules 3(4) of the IT Rules 2011 and another judgement directing the Government to come out with an SOP to eliminate child pornography, gang rape videos etc.

Social Media Allows Audiences to Consume and Produce

The affidavit highlights that social media intermediaries have transformed the consumer into a "producer" and "gatekeeping" functions performed by traditional information vehicles like news organizations, has been considerably diluted due to the emergence of user-generated content.

“With access to smart-phones, cheap internet data and a social media account, users can not only have formation related to their personal experiences, activities, beliefs and opinions but also information related to various factual matters related to the functioning of the democratic governments, thereby adversely impacting democratic discourse,” the affidavit reads.

It cited the Reuters Institute Digital News Report 2021 according to which only 41% people used traditional news platforms to consume news on YouTube, Twitter and Instagram at 35%, Facebook 37%.

“This implies that the majority of the news-related information consumed on social media across major social media platforms in India is produced by common users who may not possess the capabilities, resources and time to verify the information before publishing… while a common user may not have the available time and resources to verify the information, anti-social and anti-India actors/organizations have been using this feature of social media to deliberately publish and amplify false information,” the affidavit states.

Agnipath Scheme

The affidavit cited fake information that led to destruction of public property around last year’s protests during implementation of the Agnipath Scheme for recruitment in the Indian Armed Forces.

The plea mentions fake information in tweet, claiming that the Cabinet Committee on Security had taken a decision for the removal of Sikhs from the Indian Army.

It also mentions fake information on a YouTube channel, regarding the President approving a ban on the use of electoral voting machines.

“It would be appropriate that a mechanism to address such information be viewed not as being in conflict with the fundamental rights but as being in harmony with the other fundamental rights, and in the public interest,” the affidavit states in response to contentions of violation of fundamental rights.

Grievance Redressal Mechanism

Rule 3(2)(a) of the IT Rules, 2021 already provided that the intermediary shall prominently publish details of its Grievance Officer by which a victim can complain and action must be taken within 72 hours. An appeal would lie with the Grievance Appellate Committee (GAC), the affidavit adds.

“In this connection, it is also pertinent that both the Grievance Officer and the GAC are independent of the "fact check unit' of the Central Government. The user/aggrieved person may seek the relevant document or information from the fact check unit of the Government under the provisions of the Right to Information Act, 2005, which also has provisions for first and second appeals,” the affidavit states.

Prasar Bharati’s FCU responded to over 39,266 queries and issued over 1,223 fact checks on social media.

The affidavit cites the Oxford Learner's Dictionary to say that the word "fact” means a thing that is known to be true, “especially when it can be proved.”

Finally, the affidavit adds that the rule is in “public interest” and provides an evidence-based-fact-checking system, for a mechanism to deal with fake or false or misleading information resulting in riots, mob lynching and other heinous crimes, including those concerning the dignity of women and sexual abuse of children.

While the matter was supposed to be heard today, due to unavailability of the bench it will be heard on Monday.