The story so far: The Ministry of Electronics and Information Technology on Thursday amended the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The amendment empowers the Union Government to designate an official fact checker for misinformation and ‘fake news’, and to regulate the online real money gaming industry, which comprises apps like fantasy sports sites, rummy and poker.
What does the amendment say on fake news?
The fact check unit of the Press Information Bureau (PIB), which has been ‘debunking’ WhatsApp forwards and news articles on Central Government schemes and departments for years, will be notified as the official fact checker for the Union Government. As such, whenever any news is notified as fake, social media companies will lose their “safe harbour” for such content, opening them up to lawsuits or other legal action. Social media companies have traditionally enjoyed legal immunity for content posted by users, as the Information Technology Act, 2000 treats them as intermediaries. Under the IT Rules they lose this status if, among other things, they don’t have a grievance officer for India, or don’t address user complaints on time. Additionally now, with this amendment, they will lose their safe harbour immunity for posts that have been flagged by the government as misinformation.
Why has the amendment caused concern?
The government claims to have conducted consultations with stakeholders before notifying this particular part of the amendment. However, organisations like the Editors Guild of India and the Internet Freedom Foundation (IFF) have called the amendment “akin to censorship” and “legally contentious,” indicating that they were either not consulted or that their views were not taken into account. The only change made from the draft version on this subject is a technical one recommended by the Department of Legal Affairs. “The fact check unit … 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,” the IFF stated.
Will platforms take down ‘fake news’?
Union Minister of State for Electronics and Information Technology Rajeev Chandrasekhar argued on Twitter and in a nearly hour-long interaction with journalists on Thursday that this amendment did not constitute censorship, and would only remove social media firms’ immunity when they choose to leave ‘fake news’ that is declared as such. “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,” IFF said.
It is unclear how platforms will respond. Generally, U.S. social media firms have been hesitant to be pulled into public confrontations with the Government, preferring to silently comply with takedown notices. Twitter has been an exception, fighting some censorship orders in the Karnataka High Court; under Elon Musk, while the case continues, the platform has been taking down accounts and posts of journalists, politicians and activists upon the Government’s requests. Mr. Chandrasekhar’s argument — that platforms are free to keep content up even after it is flagged as ‘fake news’ — relies on social media firms deciding to stand for users’ rights over maintaining good relations with the Government. If platforms intend to do so, they have not stated it explicitly.
What does the amendment say on real money online games?
The amendment requires real money gaming services, where users deposit money in expectation of winnings, to get themselves certified as “permissible” by a Self-Regulatory Body (SRB) consisting of experts and industry members. Since decades of constitutional jurisprudence has narrowed down the definition of “betting and gambling,” for which administrative authority rests with States, “permissible” real money games would likely be those where the outcome doesn’t depend purely on chance. The real money gaming industry, which has battled States in court — often successfully — against wholesale bans, has welcomed this amendment, and indicated that they will comply. Mr. Chandrasekhar said that games that are not declared “permissible” would fall under the “betting and gambling” category, opening them up to restrictions from States where such activities are prohibited.
Will betting and gambling apps be banned?
The government has categorically refused to get into the debate on whether a real money game is one of skill or chance, which is a crucial distinction to legally determine whether an app facilitates betting or gambling. This decision has been left to the SRBs. As such, major fantasy sporting apps and card games that have obtained court orders recognising them as games of skill, may not be impacted. Before passing this amendment, the Union Cabinet amended the Allocation of Business Rules to give the Centre powers to regulate “online gaming”.
This amendment may not please State governments. Tamil Nadu, for instance, has unsuccessfully tried three times to prohibit real money online games under the “betting and gambling” label. The latest Bill passed by the State Assembly, which designated poker and rummy as gambling, has been returned by the T.N. governor R.N. Ravi. This interpretation, Mr. Ravi’s returning of the Bill indicated, may not pass legal muster, especially now that there is a legal framework to govern them.
