The government’s proposal that social media platforms will have to take down any content fact-checked as fake or false by Press Information Bureau (PIB) or any other agency authorised by it, is seen by sector experts and lawyers as a move to control the narrative of news flow and other content on such platforms.
Since the government had earlier created the provision of having grievance appellate committees, which would include government representatives, to look into user complaints, this new addition is seen just as an irritant which will create friction between the government and the social media platforms, according to experts.
“A major drawback of the proposal is increased burden upon the intermediaries to comply with the provisions and avoid penalty. It might lead to non-publication of even true events or criticisms if the intermediaries’ fact finding unit facts to check the veracity of the content. It has to potential to adversely affect free speech and expression,” said Abhinay Sharma, managing partner at ASL Partners.
In May 2020, Newslaundry reported that PIB Fact check does not meet the criteria of being an authentic fact checker as its role mostly has been to identify misleading information related to government policies on social media platforms.
“This proposal if approved would make the government the ultimate authority of what news is or what news should be….The past instances show a high probability that only the misinformation against the government would be removed, while allowing the other misinformation online, thereby affecting the public at large and undermining their trust on all news outlets and mediums,” said Nitin Jain, partner Agama Law Associates.
According to section 3 (1) (b) (v) of the IT rules, an intermediary shall make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is ‘patently false and untrue or misleading in nature’.
In the new draft amendment introduced on Tuesday, the government proposed addition of – “Or is identified as fake or false by the fact check unit at the Press Information Bureau of the Ministry of Information and Broadcasting or other agency authorised by the Central Government for fact-checking or, in respect of any business of the Central Government, by its department in which such business is transacted under the rules of business made under clause (3) of article 77 of the Constitution”.
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“The meaning of ‘making reasonable efforts’ (as used in Rule 3(1)(b)) should be clarified by Meity (Ministry of Electronics and Information Technology). Is it only limited to informing users about the content they should not post or is the intermediary expected to actively check PIB/ government notifications and take down content themselves? Typically, intermediaries are expected to take down content only when notified,” said Kalindhi Bhatia, principal associate at BTG Legal.
Amid concerns over the government taking control over the news flow or content, many experts have asked for more clarity on the purpose behind making its own organisation at the centre of issuing instructions over fake content to the intermediaries. Further, issues with regard to increase in burden on companies with regards to tracking the authorised government agencies will in a way increase the cost for them, some industry experts said.
“Prima facie, the authenticity, objectiveness, and transparency of the process by which information is marked as fake or false by such a unit would be a crucial aspect in anticipating the effect of these proposed amendments, in case, these are brought into effect. Moreover, one may also argue that if such a rule, directly or indirectly, leads to a department/body being involved in examining its own affairs or affairs of a body akin to its interests, for determining whether certain information related to such department/body is to be marked fake or not, it might lead to a picture in which one is seen to be the judge in her/his/its own cause,” said Kritika Seth, founding partner at Victoriam Legalis – Advocates & Solicitors.
Apart from going towards a PIB fact check kind of model to verify the content, experts said that intermediaries can place disclaimers along with the content to inform the user that the information displayed is not verified and the viewer should conduct their own diligence before relying on it. Further, the common demand was either to remove the proposed amendment or introduce such framework to bring more transparency.