On 2nd January 2023, the Ministry of Electronics and Information Technology (MeitY) notified the draft Amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ('Draft Amendment') in relation to online gaming as well as the due diligence requirements by intermediaries under rule 3(1)(b)(v).
The object of the Draft Amendment relating to due diligence under Rule 3(1)(b)(v) aims to curb the dissemination of fake news and misinformation on online platforms. Towards that end, the Amendment requires internet intermediaries to prevent its users from posting any information that is identified as ‘fake’ or ‘false’ by the fact check unit at the Press Information Bureau (PIB) of the Ministry of Information and Broadcasting or other agencies or departments authorized by the Central Government for this purpose.
Fake news and misinformation on online platforms have emerged as global topics of concern, and we appreciate the Ministry’s effort to curb the same. However, we are concerned about the impact of fact-checking on freedom of expression if done without sufficient procedural safeguards. In our comments to the Ministry, we also raise doubt about the effectiveness of fact-checking to solve the problem of online fake news without also addressing the attention economy logic of social media platforms and their affordances of virality and algorithmic amplification of false and misleading content. We, therefore, submit that approaches to addressing misinformation and fake news need to be reframed with due cognizance of the information economy and its technological mechanics.
In our comments, we highlighted the following practical considerations that need to be addressed for realizing the objective of the Draft Amendment:
- The Draft Amendment provides no guidance on what constitutes ‘fake’ or ‘false’ news. Without defining ‘fake news’, it will not be possible to determine whether the fact-checking body’s decision to consider a piece of information as ‘fake’ or ‘false’ is within the reasonable restrictions on free speech under Article 19(2) of the Constitution. Hence, there is a need to clearly define what constitutes ‘false’ or ‘fake’ information and to lay down the criteria that will be used by PIB and other fact-checking agencies in their decision-making. Such definitions or criteria should also be sensitive to gender considerations.
- The Draft Amendment lacks several procedural safeguards in the process of fact-checking by agencies like PIB, thereby casting a shadow on the legitimacy and reasonableness of the restriction of speech sought to be imposed by Rule 3(1)(b)(v). The Draft Amendment’s effect on media freedom must be recognized and the fact-checking system should have clear, transparent procedures, including publication of decision of the fact-checking body, the opportunity to be heard for the affected parties, and judicial review, in order to steer clear of over-regulation of online content by the State
- The Draft Amendment should incorporate procedural safeguards to secure the fairness and independence of members of fact-checking agencies like PIB. It is not prudent to entrust government departments with fact-checking instead of independent authorities. Further, it should also make provision to ensure that the membership of the fact-checking bodies, including PIB, is sufficiently representative, particularly of gender, and has adequate expertise to do effective fact-checking.
Read our full submission to the Ministry here and a detailed version of the submission here.