Context

• On April 6, 2023, the Ministry of Electronics and IT (MeitY) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 to amend the IT Rules 2021.
• This amendment authorises the central government to designate a "fact check unit” to identify "fake or false or misleading" information in respect of "any business of the central government."

Introduction to IT Rules, 2023

• Initially, this amendment only contained provisions for regulating online gaming companies. But later MeitY published a new draft that included "fact-checking powers."
• As per the new rules, the government's fact-check unit will have the power to flag any "government-related" content as"fake or false or misleading."
• The flagged content must be removed by all intermediaries.
  • These intermediaries include internet service providers (ISPs) and file hosting companies as well.
• If any intermediary fails to comply, they will be at risk of losing protections guaranteed by "Section 79 of the IT Act, 2000" – Safe harbour.
  • Section 79 of the IT Act, 2000absolves intermediaries of liability for content posted by its users.

Concerns over IT Rules 2023

• The IT Rules 2023 do not define what constitutes "fake or false or misleading.
• The rules contain detailed criteria for self-regulatory organizations; gaming platforms.
  • These MeitY-certified self-regulatory bodies are given protections such as qualification criteria and pre-decisional hearings.
  • These protections do not exist for "fact check units."
• These rules violate the Supreme Court's Shreya Singhal vs Union of India (2013) judgement, which laid down strict measures for blocking contents.
  • The SC determined that in order for intermediaries to be in compliance with Section 79 and the IT Rules, they must have real knowledge of the unlawful activities via a court order or notification from the relevant authorities.
  • These are reasonable restrictions under Article 19(2) of the Constitution. However, Article 19(2) does not contain the phrases “fake or false or misleading”.
• The government has empowered itself to bypass the Section 69A (of IT Act 2000) process for blocking content.
  • The fact check unit will be empowered to issue a takedown order to all intermediaries across the internet stack, potentially bypassing the process statutorily prescribed under Section 69A of the IT Act, 2000.
• These new rules pose a challenge to Freedom of Speech. The government could flag any news or article that is critical to the government policies as fake, false, or misleading.

 Criticism from the industry

• The Editors Guild issued a statement stating that “determination of fake news cannot be in the sole hands of the government.”
• Editors Guild stated that“What is further surprising is that the Ministry has notified this amendment without any meaningful consultation that it had promised.”
• Indian Newspaper Society argued that the amendments would allow the government to “proscribe any criticism of its actions.”

 Criticism to the previous amendments to IT Rules 2021

• The IT Rules 2021 have undergone an amendment every year.
• The Bombay HC observed that these changes could “starve people of the liberty of thought,” while the Madras HC noted that “a wink or a nod from appropriate quarters may result in the platform being inaccessible to a citizen.”
• The Union government contested these cases and sought their transfer to the SC.
• The government introduced further amendments, creating grievance appellate committees that allow social media users to appeal content moderation decisions of the government.

Conclusion

• With this amendment in IT Rules 2021, the government has given itself the power to determine what the truth is.
• Without defining what constitutes "fake, false, or misleading," IT Rules 2023 will have serious implications.