A setback for India’s freedom of expression

The MediaOne judgement came as a blow to the unjustified curtailment of free speech and the preservation of the right to dissent and criticism. However, just a day later, the Ministry of I&B released a notification, dated April 6, 2023, notifying the IT (Intermediary Guidelines and Digital Media Ethics Code), Amendment, 2023.

There can essentially be multiple fact-check units (FCUs) that can be established through gazette notifications by the Ministry of I&B to check for false or misleading information in respect of any business of the Union government, according to the amended rule 3(b)(v) of the IT Rules, 2021.

A plea challenging the current amendments has been filed before the Bombay High Court, wherein the court has asked for an affidavit from the Centre. But what do these amendments mean for free speech and censorship of the press?

The safe harbour protection clause, under Sec. 79 of the IT Act, 2000, protects social media intermediaries (SMIs) from any liability for acts done by any other party. Through the current amendment, this protection is watered down by taking away immunity if it fails to act on the content in question.

With this, if any intermediary fails to remove false content or moderate online content on its platform, it risks losing immunity for third-party liability hosted on its platform.

There is a possible chance that the intermediaries could be held liable for the content shared by their users. They would be inclined to take a more cautious and restrictive approach to content moderation and remove any content that could potentially be deemed controversial or even remotely concern the business of the government.

This could lead to a situation where SMIs hesitate to display or allow such content. Thus, any information posted by any media outlet or independent journalist that would be considered controversial is at higher risk of being struck down and the user account getting blocked, particularly if it pertains to the government.

The latest amendment is not only a concern in terms of its potential impact on online free speech but also raises pertinent legal issues. Section 69A of the IT Act, 2000, lays down the legal framework for the government to block access to online content in certain circumstances, subject to specific conditions provided in the landmark judgement in the Shreya Singhal case. The Court emphasised the importance of adhering to the statutory requirements under Section 69A before issuing any blocking orders under the Act.

The requirement to provide reasonableness in any procedure that restrains freedom of the press has been affirmed in the judgement of Media One, where the court held that “the core of the principles of natural justice breathes reasonableness into procedure”. However, such a requirement of reasonableness is not fulfilled by the amendment in question. According to the statement released by the Internet Freedom Foundation, the establishment of a fact-check unit under the control of the executive stands in contrast to the principles of natural justice.

The recent amendment can bypass these legal safeguards of natural justice and give the unit unfettered authority to issue takedown orders to social
media platforms and other intermediaries across the internet if they are false
or misleading, according to the ministry concerned.

This could result in arbitrary and excessive censorship of online content without any legal recourse for the affected users or intermediaries. It is important that any efforts to curb “fake news” and misinformation are carried out within the limited restrictions imposed by Article 19(2) of the Constitution.

The framework of existing laws under IT Rules is hasty and ill-considered, which could seriously infringe on free speech and censor online content in a manner that those in power deem fit.

Investigative journalism remains principally important to check the veracity of information that is put forth by the government and other sources. Any investigation report by an independent journalist or media organisation like The Wire’s Pegasus Report would come under large scrutiny from intermediaries, who would become inclined to block and remove such content from their space for taking the opposite stance from that of the government.

It would ultimately cause a reversal effect, deterring journalists and publishers from publishing anything remotely controversial or scrutinising the government. This would undoubtedly have a damaging impact on news media agencies, publishers of news or current affairs content, and digital news sites like The Print and The Wire.

In such a scenario, the power of censoring content will be used by the government to silence critics and independent journalism by labelling such content as ‘false, fake, or misleading information,’ which itself is open
to subjective and biassed interpretation of the FCU so constituted under the ministry.

We must recognise the potential dangers of the government giving the power to ascertain what is ‘true’ or ‘false’ to the FCUs constituted under the IT Rules. Comparing today’s situation with the Nazi era, Joseph Goebbels, who led the Ministry of Propaganda in Nazi Germany, effectively controlled content in press literature material, visual arts, and films by which were constructed the propagandist ideas that it wanted to be the truth in the eyes of Germans with the help of the secret police and Reich Propaganda officers.

In the same way, the authorised FCUs will have indefinite powers without any safeguards or remedial procedures for users supervising SMIs to check for false information and censor such content.

These bodies could become the Goebbels of the present if due restraints on the exercise of their power are not provided for consequently and grievance appeals of such matters blocked by FCU are not given to an independent adjudicating body, unlike the inter-department committee already constituted by MoI&B under present rules.

(The writers are students at National Law University, Jodhpur)