With the advent of social media — the product of the evolution of the Internet into a sphere of communication that allows for relatively unfettered user-generated content — the problem of misinformation has taken a grotesque form. Express measures to curb misinformation, called “false news” and the somewhat inaccurate “fake news”, are a must. However, this raises the question whether the Union government or its divisions can be the regulating entity. In the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, the Union government has added a provision of a fact-check unit to identify fake or false or misleading online content related to the government. Against such content identified by this unit, intermediaries, such as social media companies or net service providers, will have to take action or risk losing their “safe harbour” protections in Section 79 of the IT Act, which allows intermediaries to avoid liabilities for what third parties post on their websites. This is unacceptable and problematic. Also, Section 69A of the IT Act, 2000 elucidates the procedure to issue takedown orders, which these notified amendments could bypass. They also run afoul of Shreya Singhal vs Union of India (2015), a verdict with clear guidelines for blocking content.
Without a right to appeal or the allowance for judicial oversight, the government cannot sit on judgment on whether any information is “fake” or “false” as the power to do so can be misused to prevent questioning or scrutiny by media organisations. Takedown notices have been issued by the government for critical opinion or commentary on social media platforms, with several having to comply with them and only a few such as Twitter contesting them in courts. By threatening to remove a platform’s immunity for content that is flagged by a government unit, it is clear that the Union government intends to create a “chilling effect” on the right to speech and expression on online platforms. To keep the establishment — which includes the executive government of the day — on its toes and to speak truth to power is a non-negotiable and salient role of journalism in a democracy. In India, freedom of the press is guaranteed through Article 19 of the Constitution, with media rights and public right to free speech derived from this Article. It stands to reason that any relationship between the government and the media should be one kept at arm’s length, with the media having sufficient freedom. The government being the arbiter on what constitutes “false” or “fake” news and having the power to act upon platforms for publishing these will amount to draconian censorship.