This article is a summary of an editorial titled “It is a new assault on India’s liberty” published in The Hindu on 20/04/2023. The editorial highlights the implications of the amendments made in the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules on free information and freedom of speech in India.
Important for Essay Writing Topic – New IT Rules and Social Media
The Indian government has recently made a new amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which allows the Ministry of Electronics and Information Technology (MeitY) to establish an unrestricted “fact check unit” to detect false or misleading online content.
If social media intermediaries fail to prevent users from hosting or publishing flagged information, they may lose their “safe harbour” immunity, exposing them to criminal prosecution. This could negatively affect freedom of speech and civil liberties in India.
The new regulation gives the Union government the authority to determine what information is false and to censor it through intermediaries. This contradicts the constitution’s principles of free information and freedom of speech.
In the age of the internet, the spread of misinformation and fake news is a significant issue, and the Indian government has attempted to address it through the IT Rules amendments. However, there are concerns about the impact of these changes on freedom of speech and expression.
What are the IT Rules?
- The IT Rules are derived from the Information Technology Act of 2000, which provides legal recognition for electronic commerce.
- The Act offers a “safe harbour” provision for intermediaries that observe due diligence in performing their duties and follow the guidelines prescribed by the state.
- Intermediaries, such as social media platforms like Facebook, Twitter, Instagram, and WhatsApp, are granted immunity under Section 79 of the Act, provided they follow due diligence and state-prescribed guidelines.
- The IT Rules impose obligations on intermediaries and require social media platforms to provide technological solutions for identifying the first originator of any information on their service, under certain circumstances.
- The IT Rules have faced several challenges, and petitions are awaiting consideration in the Supreme Court of India.
What are the New Regulations?
- The 2021 IT Rules were introduced to regulate intermediaries and digital news media, replacing the previous guidelines.
- Social media platforms were required to provide technological solutions to identify the first originator of any information, which could jeopardize privacy.
- The amendments made in April 2023 give the government the power to decide for itself what information is false and censor content by forcing intermediaries to take down posts deemed fake or false.
- These new regulations threaten freedom of speech and civil liberties in India by restricting speech through executive order, rather than legislation.
- Article 19(1)(a) of the Indian Constitution grants every citizen the right to freedom of speech and expression, which can only be limited through reasonable restrictions made by law on the grounds stipulated in Article 19(2).
- Fake news and misinformation are not grounds on which speech can be limited, and the amendments made to the IT Rules do not specify the restraints they place in any manner.
- The Fact Check Unit has limitless powers to decide what information is false and compel social media intermediaries to act based on these findings, which are open-ended and undefined.
What are the Concerns?
Lack of Clear Definitions:
The recent amendments fail to define fake news, and allow the government’s fact-check unit to declare the veracity of any news related to the state’s business. The use of undefined terms such as “any business” gives the government unchecked power to regulate people’s access to information.
Not a Standard Practice:
Instead of the recent amendments, a comprehensive parliamentary legislation on fake news, grounded in Article 19(2) of the Indian Constitution, would have been more constitutionally appropriate. For instance, France has an independent judge responsible for making declarations to counter the spread of misinformation during elections.
Removal of Information:
The new regulations require intermediaries to remove information deemed false by the Fact Check Unit. This means that the state will be the only entity deciding what information is true, and this could restrict the rights of the press and individuals to question authority and speak truth to power.
The recent amendments could curtail civil liberties and diminish the rights of the press and individuals.
Violation of Supreme Court’s Judgment:
The recent amendments may violate the Supreme Court’s 2015 judgment in the Shreya Singhal vs Union of India case, which held that a law that limits speech cannot be vague or over-broad.
What Should be the Way Forward?
- Develop algorithms to identify and flag false information
- Promote fact-checking websites
- Intermediaries can set up internal committees to monitor content
- Work with fact-checking websites to ensure accuracy
- Create awareness among the public about the dangers of censorship and the importance of free speech
- Use social media campaigns, workshops, and discussions in schools, colleges, and other public forums
- The government, intermediaries, and civil society organizations can work together
- Set up a joint task force to identify and remove false information
- Promote media literacy among the public