Nandan D. & Archana B.
Introduction
Freedom of press, as the fourth pillar of democracy[i] and intrinsic to the freedom of speech and expression under Article 19(1)(a) of the Constitution of India, includes the right to access and report information. In this context, traditional fact-checking was an activity directed against the government to ensure their transparency and accountability. However, the modern digital era has led to an unprecedented proliferation of disinformation and misinformation, particularly across social media, which has induced the governments across the world to fact-check.
Accordingly, Part-I of this article, written in two parts, analyses the current legal position of the government sponsored fact-checking in India while exploring the international efforts, vis-à-vis foreign nations and international organisations, to combat the menace of disinformation and misinformation in a bid to draw parallels between the Indian scenario and the international stance. Subsequently, Part-II focuses on the imperative of accountable fact-checking in light of the need for a reformed approach to the theory ‘marketplace of ideas’ to prevent the creation of an ‘alienated citizenry’.
Legal Position of the Fact Check Unit in India
While the Parliament witnessed multiple, abandoned or failed, attempts to countenance the issue of disinformation and misinformation, including the Defamation Bill, 1988, or The Fake Information (Prohibition) Bill, 2019, or the Prohibition of Fake News on Social Media Bill, 2023, false news has been combated by invoking existing provisions of the Indian Penal Code, 1860, or the Information Technology Act, 2000.
However, in 2021, the Central Government proposed to establish a Fact-Check Unit (FCU) under Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, (IT Rules, 2021) under the Press Information Bureau (PIB) of the Ministry of Information and Broadcasting (MIB), whose purpose is to be a deterrent to the creators and disseminators of fake news or misinformation.
The implementation of Rule 3(1)(b)(v) (Rule) by an amendment in April 3rd, 2023, was challenged before the Bombay High Court, in Kunal Kamra v. Union of India, which delivered a split verdict on January 31st, 2024.Justice G.S. Patel struck down the Rule as violative of Article 14, Article 19(1)(a) and Article 19(1)(g), while Justice N.K. Gokhale upheld its constitutionality. Due to the split verdict, the matter was referred to a tie-breaker judge of the Bombay High Court to render his opinion on the points of difference between the two judges of the division bench, and ultimately, decide the constitutionality of the FCU.
However, on March 20th, 2024, the FCU was notified by the Ministry of Electronics and Information Technology (MeitY). The Supreme Court in Editors Guild of India v. Union of India (2024), stayed the notification until the tie-breaker judge had delivered their opinion on the points of difference between the two judges in the division bench of the Bombay High Court.
Justice A.S. Chandurkar, by his verdict on 20th of September, 2024, in Kunal Kamra v. Union of India, sided with Justice Patel in holding the 2023 amendment to Rule 3(1)(b)(v) as unconstitutional on the following grounds:
- The Rule fails the test of proportionality;
- There is no guideline or principle that will guide the FCU in flagging a content as ‘fake, false or misleading’;
- The expression ‘fake, false or misleading’ has not been defined which makes the provision vague and overbroad;
- The expression ‘knowingly and intentionally’ cannot be applied to the latter portion of the Rule that relates to the business of the Central Government; and hence,
- The Rule is incapable of being read down and has a chilling impact on freedom of speech and expression.
Has the FCU’s Lacuna Been Remedied?
While the majority opinion stressed on the FCU’s excessive delegation, guidelines notified on the PIB’s official website may offer some elucidation on the functioning of the FCU.. While it remains unclear as to when the guidelines were notified, these guidelines provide for the FCU to follow a F.A.C.T. model, wherein the FCU shall:
- ‘Find’ information either suo moto or on receipt of complaints;
- ‘Assess’ only complaints regarding the rules, regulations, policies, guidelines, schemes, announcements and initiatives of the Central Government, its Ministries, Departments, Public Sector Undertakings, and other organisations and test the complaint’s authenticity through open-source government information available in documents, circulars, notices, gazettes, websites, etc.;
- ‘Create’ awareness through the Information, Education & Communication strategy; and,
- ‘Target’ the factually coherent content by dissemination on its social media handles.
Moreover, as the judgment also stresses on the absence of a definition for the terms ‘fake, false or misleading’, the PIB has delineated the bounds of these terms on their website to include both disinformation and misinformation:
- Fake content is “any factually incorrect news, content, or, piece of information related to the Government of India, spread intentionally or unintentionally, that can deceive or manipulate the audience, with or without the intention to cause potential harm”;
- Misleading content is “any information presented, either partially true or with selective presentation of facts or figures or with distortion of facts or figures and with the intention of deceiving or misleading the recipient of the information”; and,
- True content is any information that is discerned to be factually correct upon investigation.
Further, the FCU proposes to use technological tools including reverse imaging and video analysis, following which, the fact-checked content is posted on the official social media handles of the PIB-FCU and does not mandate the removal of the flagged content by the intermediary. These guidelines narrow the scope of operation of the FCU and provide elaboration on the term ‘business of the Central Government’ appearing in Rule 3(1)(b)(v).
International Scenario on Government backed Fact-Checking
In the United States, Section 35 of Title 18 of the U.S. Code provides civil penalties for imparting/conveying information with the knowledge of it being false and criminal punishment for willfully and maliciously doing so with reckless disregard for human life. Further, two Bills namely, the Educating Against Misinformation and Disinformation Act and Countering Foreign Propaganda and Disinformation Act, which propose the establishment of a commission or Centre for Information Analysis under the U.S. Department of State, respectively, are pending in the United States Congress.
The UK Government, in 2019, had established the Counter Disinformation Unit (CDU) under the Department for Digital, Culture, Media and Sport, which was later rebranded as National Security Online Information Team (NSOIT) under the Department of Science, Information and Technology, to prevent the spread of inaccurate and incorrect information on matters concerning public health, public safety and national security.
France had also enacted a legislation titled Dispositions Modifiant Le Code Électoral, 2018, wherein the Higher Audiovisual Counsil (CSA), the French broadcasting agency, was empowered to suspend television channels controlled by a foreign state for disseminating disinformation that is likely to affect the sincerity of elections. Germany enacted the Netzwerkdurchsetzungsgesetz (NetzDG) Law, 2017, that requires social media companies to remove ‘obviously illegal posts’ within 24 hours on being flagged by competent authorities.
The citizens in Italy can report misinformation on an online portal to the Polizia Postale, a unit of the state police, that will fact-check and either initiate legal action on false information or check the authenticity of the information to deny it as false or misleading. Similarly, Singapore has enacted the Online Falsehoods and Manipulation Act, 2019, wherein the competent authority can direct a social media company to publish the fact-checked information alongside the false information on their platform.
However, a recent study conducted in 2024 by Center for News Technology & Innovation (CNTI), an independent global policy research centre, depicts that most of these anti-fake news legislations/measures, even though well intended, are causing disproportionate harm to speech and expression. Absence of a clear definition of ‘fake news’, governmental influence in fact-checking and criminal penalties makes these laws operate against the purpose of their enactment.
Stance of International Organisations Against Disinformation and Misinformation
In the international sphere, the right to receive accurate information is implicit under Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) as part of freedom of expression and freedom to seek, receive and impart information. Additionally, the 19th Global Risks Report, 2024, of the World Economic Forum has earmarked disinformation to be the most severe global risk in the next two years.
For the purpose of comparison to the Indian scenario, it is worth nothing the types of false information as the United Nations Development Programme (UNDP) delineates: ‘Disinformation’ is false information deliberately created with an intention of doing harm to a person, group, organisation or country; and,
- ‘Misinformation’ is false information that is not created with an intention of causing harm; and,
- ‘Mal-information’ is information based on real facts but are manipulated to cause harm.
The presence of false information and hate speech leads to a phenomenon of ‘information pollution’ that adversely affects the citizen’s capability to make informed decisions and poses a serious threat to a country’s economic, political and social stability. Efforts to mitigate the same includes State actions and independent fact-checking with the participation of journalists and civil society.
The United Nations Human Rights Council, on April 1st, 2022, adopted a resolution titled ‘Role of States in countering the negative impact of disinformation on the enjoyment and realization of human rights’ that rejects coercive methods to combat disinformation such as censorship, internet shutdowns, website blocking or filtering, disruption of mobile service, or overbroad laws criminalising disinformation on the basis of vague definitions of ‘false news’. Such measures lead to a disproportionate suppression of the right to freedom of expression and facilitate the dissemination of disinformation by hampering fact-checking efforts. However, in case of hateful or inciteful speech, disinformation can be criminalized in accordance with Article 19(3) and Article 20 of ICCPR.
While the resolution highlights the role of media in countering corruption and falsehood of the State, it also recognises the responsibility of the State to ensure access to diverse and reliable information through holistic measures such as increased transparency in official data, ensuring an independent media, right to information laws, and media and digital literacy lessons in schools. Further, it also encourages the social media entities to modify their algorithms and frame policies to address disinformation in accordance with the UN Guiding Principles on Business and Human Rights.
Similar recommendations were put forth in the UN Secretary General’s report dated 12th August, 2022, on‘countering disinformation for the promotion and protection of human rights and fundamental freedoms’ that highlights misinformation as the ‘dark side of technology’ and underscores the State’s duty to ensure pluralism of media and share accurate information to create an informed public.
Further, a 2022 study conducted by the Global Education Centre recommends fact-checking by an independent body, free of political agendas, to counter disinformation in addition to governmental and the civil society’s initiatives to enhance digital and media literacy. However, in Indian jurisprudence, the mere appointment of the members of a body by the government would not automatically impart the presumption of bias, as held in Crawford Belly & Co. v. Union of India (2006).
Conclusion
In reference to the consistent stance of discontent taken by foreign nations and international organisations, it can be discerned that the issue disinformation and misinformation is an all-pervasive global crisis that needs to be checked to preserve socio-economic and political stability.
In India, Rule 3(1)(b)(v) that established the FCU required corrections to remove vagary, overbreadth and likelihood of bias. While the IT Rules, 2021, did not provide any definition for the words ‘fake, false or misleading’, the publications on the official website of the PIB broadly defines the terms which is consistent, if not more elaborative, than the UNDP’s definitions. This, in addition to PIB’s principles to guide the FCU, could edge Rule 3(1)(b)(v) one step closer to constitutionality.
However, given that political agenda can also, at times, contribute to ‘information pollution’, there is not only an imperative for non-biased fact-checking by the proposed FCU but also its continuous objective dialogue with independent media to ensure plurality of views. The perseveration of democracy in its true form, viz., to facilitate free exchange of ideas and opinions and involvement in meaningful debates and discussion based on facts free from contamination warrants the curbing of disinformation, which Part 2 of this series seeks to elaborate on.
Endnotes:
[i] Thomas Carlyle, On Heroes, Hero-Worship, & the Heroic in History (James Fraser, London 1841) 147
The Authors are 4th-year students from School of Law, CHRIST (Deemed to be University), Bengaluru.
Image Credit: Rappler.com
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