The Union government on Thursday notified amendments to IT Rules, 2021, which paved way for a body that would flag "fake" content about the government.
The amendments also make it "obligatory" for intermediaries such as social media platforms to "not to publish, share or host fake, false or misleading information" about the Union government. THe content that falls into this criteria will be flagged by a government body yet to be notified.
Free speech advocates have said that such a fact-checking government body with widespread powers would not be constitutional. Reports say that the fact-checking unit mentioned in the amendment would be carved out of the Press Information Bureau (PIB).
Here we explain what the amendments say and what concerns experts have raised about them.
IT Rules (Amendmends), 2023
Through a notification, the Ministry of Electronics and Information Ministry (MEITy) published amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
"In sub-clause (v), after the word "nature", the words "or, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify" shall be inserted," says the amendment, which paves the way for the government to set up the fact-checking body.
Though the notification published in the gazzette or the press release does not mention it, reports say the the said fact-checking unit would be carved out of the PIB.
India Today reported, "The amended rules will give powers to the Press Information Bureau (PIB) to fact-check any 'fake, false or misleading' information about the central government. It can also ask social media platforms such as Twitter and Facebook to take down the content."
Such a unit would be set up with a separate notification by the ministry, said a press release.
The release said, "These fake, false or misleading information will identified by the notified Fact Check Unit of the Central Government. it is to be noted that the existing IT rules already required the intermediaries to make reasonable efforts to not host, publish or share any information which is patently false and untrue or misleading in nature."
The release alsos states that while intermediaries such as social media platforms were previously encouraged to take down content, now they would be under legal obligation.
The release said, "The amended rules now also make it obligatory on the intermediaries to not to publish, share or host fake, false or misleading information in respect of any business of the Central Government...It is to be noted that the existing IT rules already required the intermediaries to make reasonable efforts to not host, publish or share any information which is patently false and untrue or misleading in nature."
Experts raise concerns
Following the notification, the Internet Freedom Foundation (IFF) expressed "deep concerns" over the amendments.
In a statement shared on Twtter, IFF said the amendments "directly and indirectly negatively impact online freedom of speech and the right to receive information".
The IFF also questioned the constitutionality of the fact-checking body to be formed by the Centre in line with the amendments.
"Assigning any unit of the government such arbitrary, overbroad powers to determine the authenticity of online content bypasses the principles of natural justice, thus making it an unconstitutional exercise. The notification of these amended rules cement the chilling effect on the fundamental right to speech and expression, particularly on news publishers, journalists, activists, etc," said the IFF.
The IFF further said that the terms "fake" and "false" remain undefined the amendments are likely to be in violation of existing laws and judgements.
"The fact check unit, notified by the Executive, could effectively issue a takedown order to social media platforms and even other intermediaries across the internet stack, potentially bypassing the process statutorily prescribed under Section 69A of the IT Act, 2000. In addition to circumventing the parliamentary procedures required to expand the scope of the parent legislation, i.e. the IT Act, these notified amendments are also in gross violation of the Hon’ble Supreme Court ruling in Shreya Singhal vs. Union of India (2013) which laid down strict procedures for blocking content. Finally, the vagueness of the undefined terms such as 'fake', 'false', 'misleading' make such overbroad powers further susceptible to misuse," said the IFF.