The Wildfire of Misinformation

The Wildfire of Misinformation

“Cabinet Committee on security has decided to remove Sikhs from the Indian Army”, “Modi government declares war against Sikh soldiers”. In early 2022, a doctored video featuring Mr. Ajit Doval and Nirmala Sitharaman with fake audio was circulated on social media. However, the video was later discovered to be fake, and the Press Information Bureau's Twitter handle published a warning to prevent the spread of such misinformation. These incidents highlight the growing prevalence of fake information on social media as internet accessibility continues to expand.

According to a study conducted by the Oxford University press, it has been found that as many as 54% of Indians turn to social media when looking for factual information.. An MIT research paper states that fake news travels nearly 6 times faster than factually correct news.. Information on social media is duplicated, multiplied numerous times and is consumed by crores of people across the globe at the same time making it difficult to contain the damage caused due to such misinformation.

Celebrities, as public figures, have also been subjects of false information. At various times, unfounded rumors of deaths of well-known individuals like Farida Jalal, Amitabh Bachchan, who are actually in good health, have been circulated on social media. Celebrity kids have also not been spared from being subjects of false information. Recently, Aaradhya Bachchan, granddaughter of Amitabh Bachchan, through her father Abhishek Bachchan, filed a case in the Hon’ble Delhi High Court against YouTube channels that published fake information about Aaradhya’s mental and physical health claiming that she is critically ill. The Court discussed the biggest risk associated with misleading content is that it is replicated and multiplicated many times in multiple forms before any action/complaint is filed with the concerned platform as per the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”). The Court therein issued an interim restraint order against the identified YouTube channels for transmitting and publishing any information on Aaradhya’s health. The Court further pulled up Google for not resolving and identifying such fake information in the first instance and only acting upon it when a complaint has been filed by the concerned person.

As mandated under Part II of the IT Rules, intermediaries (including social media platforms) are required to conduct due diligence to avail immunity under safe harbor provisions of Information Technology Act, 2000 (“IT Act”). Section 79 of the IT Act introduced the safe harbour immunity clause that protected an intermediary from being held liable for third-party content on its platform - provided that the intermediary observed 'due diligence' as prescribed by the Central Government. The Central Government, through Part II of the IT Rules, listed out the due diligence obligations for the intermediaries. Prior to April 06, 2023, the IT Rules under Rule 3(b)(v), required an intermediary, to inform its users to not host, display, upload, modify, publish, transmit, store, update or share any information that deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any information which is patently false and untrue or misleading in nature.

The Central Government, on April 06, 2023, amended the IT Rules vide Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (“2023 IT Amendment”). Under the 2023 IT Amendment, the Central Government as a step to curb publication of misinformation, has modified Rule 3(b)(v) to firstly, add a layer of obligation on the intermediary by requiring it to, in addition to informing its users, take reasonable efforts by itself, to ensure that no misinformation is published on the intermediary platform, and secondly introduced a government notified fact check unit (“Fact Check Unit”) to identify fake information in respect of any business of Central Government and obligate the intermediary to takedown such content which is identified as fake by the Fact Check Unit. Violation of this rule can lead to the intermediaries losing their 'safe harbour' immunity as provided under the IT Act.

Digital right activists, press associations, Editor’s Guild of India, have criticized the 2023 IT Amendment as being ‘draconian’ and called for withdrawal of the 2023 IT Amendment as it will have deep adverse implications for press freedom in the country. The grant of sweeping powers to the Fact Check Unit under the 2023 IT Amendment has been construed as an exercise of censorship by the Central Government through the intermediaries under the garb of curbing fake information.

On April 11, 2023, stand-up comedian and political satirist Mr. Kunal Kamra has filed a plaint in the Hon’ble Bombay High Court against the Central Government challenging the said provision of the 2023 IT Amendment on the grounds that it is violative of Article 14, 19(1)(a) and 19(1)(g) of the Indian Constitution and it being ultra vires of Section 79 of the IT Act. The Hon’ble Court directed the Central Government to file its response in the said matter detailing the factual background and reasons for the 2023 IT Amendment.

The Central Government has, vide an affidavit in the aforementioned matter (“Affidavit”), informed the Hon’ble Court that the Fact Check Unit would not be notified till July 05,2023 and the reasons behind introduction of the 2023 IT Amendment. The Affidavit broadly lists down the following reasons:

Restricted to business of Central Government: The role of the Fact Check Unit is restricted to any business of the Central Government, which may include information about policies, programs, notifications, and limited to identifying fake, false or misleading information and does not include any opinion, satire, or artistic impression.

Public Interest: The Central Government has stated that the 2023 IT Amendment provides an evidence-based-fact-checking system, for a mechanism to deal with fake/false or misleading information resulting in riots, mob lynching and other heinous crimes, including those concerning the dignity of women and sexual abuse of children. Therefore, the 2023 IT Amendment is in public interest. The Central Government further substantiated its reasoning by stating that dissemination of “authentic information” after fact checking by a government agency reduces the potential harm that may be caused to the public at large due to speculative information without an official announcement from the Central Government.

Grievance Redressal Mechanism: The Central Government further states that any person who is aggrieved by the takedown of fake information by the Fact Check Unit through the intermediary can register a complaint with the Grievance Officer under Rule 3(2)(a) of the IT Rules. The Central Government has also mentioned in its Affidavit that people on social media are not only consumers but also producers of information, therefore, a Fact Check Unit is necessary to ensure that authenticated information is available on these platforms. Hence, on the basis of the aforementioned reasons, the Central Government has prayed for the dismissal of the plaint filed by Mr. Kunal Kamra.

The major concern of the 2023 IT Amendment is that it gives unilateral power to the Central Government to make the laws and enforce it through the Fact Check Unit which may potentially result in censoring any information that is against the Central Government.

For instance, in India currently there is no codified law or concrete jurisprudence on satires. While the Central Government has categorically in the Affidavit mentioned that the Fact Check Unit would not check veracity or take down any opinions, satires or any other form of artistic expression from being available on intermediary platforms, it is pertinent to note that the Central Government inherently possesses the power to enact/amend any laws. Accordingly, it may, in near future, amend the laws and restrict publication of satires and/or bring it under the purview of Fact Check Unit to take down the satirical posts, which would violate the fundamental right of freedom of speech and expression of the people. In such scenario, according to the 2023 IT Amendment, the intermediaries, without giving any opportunity to the user, will have to immediately take down such satires from their platforms to continue availing its safe harbour immunity.

Secondly, any news in relation to the Central Government may be brought under the scope of Fact Check Unit and be silenced by claiming such posts as fake and accordingly initiating take down of such posts. Thus, the 2023 IT Amendment, makes it difficult for the people to express dissent on any government action, which is harmful for a democratic country like India.

In order to achieve the goal of curbing misinformation on the intermediary platform, ideally an independent body, with no interference of the government, should be the Fact Check Unit so that information is scanned through an unbiased lens and only the information which is truly false/completely incorrect, irrespective of it being related to the government, is notified to the intermediary platform. This would ensure that the dissenting voices of all persons are not completely censored by the Central Government and at the same time misinformation is not published on the intermediary platform. Currently, according to the 2023 IT Amendment, it appears that the government firstly makes and/or amends the laws, and then enforces such laws through the Fact Check Unit which is indirectly giving unilateral power to the Central Government. Such unilateral power is a threat to the doctrine of separation of powers which is one of the core foundation stones of our Indian Constitution.

Conclusion:

The importance of social media in today’s internet age cannot be undermined. It has a major influence on the ideologies and behavior of people which indirectly influences the society at large. Therefore, when misinformation or fake information is fed in the minds of people through these platforms, risk of religious tension, communal violence, riots, and hatred increases in the society. While it is important to ensure checks and balances on publication of fake information, the constitutional freedom of speech and expression cannot be denied under the garb of fake information. Since the 2023 IT Amendment is being judicially tested on the parameters of constitutional checks and balances, it is a matter of time to see whether the Hon’ble Bombay High Court strikes down the 2023 IT Amendment or upholds its validity.