Amendment to it rules and regulating fake news

General Studies Paper 2

• The Ministry of Electronics and Information Technology (MeitY) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, which are an amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The Amendment to IT Rules has generated intense debate, with some arguing that they could curtail freedom of speech and expression online, while others believe that they are necessary to prevent the spread of fake news and other harmful content.

About the recent Amendment to IT Rules

• Introduction of Fact-Check Bodies: The recent amendment to IT Rules introduces the creation of fact-check bodies to identify whether information related to the Central government is accurate or not.
• Regulation of Social Media Intermediaries: The new amendments also regulate social media intermediaries like Facebook and Twitter to take down posts and internet service providers to block URLs marked as fake, failure to do so could lead to social media platforms losing safe harbor protections.
• Identification and Removal of Fake News:The amendment aims to identify and remove fake news to prevent its spread, especially during tumultuous times where it can incite violence and cause panic.
• Ensuring Accountability of Online Platforms:The amendment seeks to ensure accountability of online platforms by requiring them to follow a code of ethics and take measures to prevent the misuse of their platforms.
• Addressing National Security Concerns:The amendment aims to address national security concerns by allowing the government to take down online content that threatens the sovereignty and integrity of India.
• Providing a Legal Framework for Tech Regulation:The amendment provides a legal framework for tech regulation and clarifies the responsibilities of online platforms, social media intermediaries, and the government in regulating online content.

What is the rationale behind the recent amendment to IT Rules?

• The recent amendment to IT Rules aims to regulate social media platforms, online news publishers, and other digital media outlets.
• Regulating Fake News: One of the primary reasons behind the amendment is to regulate the spread of fake news and misinformation through social media platforms and other digital media outlets.  For instance, recently, a malicious disinformation campaign led to law-and-order issues in Tamil Nadu. The news spread false claims about violence against migrant workers from Bihar and was propagated through social media.
• Non-liability of Intermediaries: Section 79 of the IT Act states that an intermediary (Digital media and OTTs) shall not be liable for any third party information, data, or communication shared on their platforms. They enjoy a safe harbour regime.
• Amount of Internet users in the country: The user base of digital media companies and the online gaming industry has expanded rapidly since the pandemic. India, with about 658 million users as of January 2022 has the second-highest number of Internet users, after China. Hence, without proper regulation, the information going on them might trigger national security issues and other challenges.

What are the advantages of amendment to IT Rules?

• The amendments to the IT Rules bring some advantages, including:
• Addressing the issue of fake news: The creation of a fact-checking body can help to address the issue of fake news and misinformation on online platforms, which can potentially cause harm to society.
• Improved accountability: The amendments provide for increased accountability of social media intermediaries, which are required to remove content marked as fake or misleading. This can help to prevent the spread of harmful content and ensure that intermediaries are more responsible for the content on their platforms.
• Protection of citizens’ rights:The rules provide for an appeals process for citizens who feel that their content has been wrongly flagged as fake or misleading, ensuring that their rights to freedom of speech and expression are protected.
• Cybersecurity:The rules provide for the mandatory appointment of a chief compliance officer, a nodal contact person, and a resident grievance officer by social media intermediaries. This can help to improve cybersecurity and prevent the misuse of online platforms for illegal or harmful activities.
• Ensuring Compliance: It seeks to ensure compliance with Indian laws, including those related to national security and public order. This helps to prevent the misuse of social media platforms and other digital media outlets to incite violence or spread hate speech.
• Promoting Self-Regulation: Finally, it aims to promote self-regulation among social media platforms and other digital media outlets. This encourages these platforms to take proactive measures to prevent the spread of fake news and other malicious content, rather than waiting for the government to take action.

What are the challenges associated with the amendment to IT Rules?

• Some of the challenges associated with the amendment:
• Lack of clarity on what constitutes “fake or false or misleading” information:The amendment does not provide a clear definition of what types of information qualify as “fake or false or misleading.” This lack of clarity creates ambiguity and can lead to arbitrary censorship by the government.
• Censorship and Freedom of Speech:The fact-check unit of the central government has been given unprecedented power to censor any content that they deem to be fake or false or misleading, which could potentially infringe upon the freedom of speech and expression of citizens.
• Lack of transparency and accountability: The proposed amendments do not provide any criteria or guidelines for the government to declare information as ‘fake’ or ‘false’, leading to potential misuse of power. Moreover, the lack of due process, notice and hearing for the originators and creators of information may lead to arbitrary takedowns and a lack of accountability.
• Burden on intermediaries: The proposed amendments increase the compliance burden on intermediaries, who may have to take down content based on government orders without any clarity on the criteria for declaring information as ‘fake’ or ‘false’. The additional layer of censorship through the Grievance Appellate Committees may further increase the burden on intermediaries.
• Impact on digital media and online news portals: The proposed amendments do not apply directly to news websites, which are not classified as intermediaries. This may lead to differential treatment of news websites and other online platforms, and potential challenges to the independence of digital media.
• Constitutional concerns:Some critics argue that the fact-checking powers granted to the government under the IT Rules, 2023 may infringe on the constitutional right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India.
• Short-circuiting established legal procedures:The amendments short-circuit a) The procedures, safeguards and conditions laid out in Shreya Singhal v. Union of India or under Section 69A of the IT Act, b) Madras High Court ruling in T M Krishna v. Union of India and the Bombay High Court ruling in Agij Promotion of Nineteen One Media Pvt. Ltd. & Ors. v. Union of India put a hold on the rules which provided the government with a wider say on content on OTT or digital media platforms.
• Chilling Effect:The mere existence of the fact-check unit and its power to censor content could have a chilling effect on free speech, as people may be hesitant to express their opinions online for fear of being censored or facing legal consequences.
• Potential for Misuse:The fact-check unit’s power could be misused by the government to silence dissenting voices or criticism of government actions, which could have serious implications for democracy and human rights.
• Opposition from civil society and media organizations:The Editors Guild, the Indian Newspaper Society, and other civil society and media organizations have spoken out against the amendment, stating that the determination of “fake news” should not be in the sole hands of the government and that it could allow the government to proscribe any criticism of its actions.
• Conflict of interest: The role played by the fact-checking unit has a significant conflict of interest as it plays the role of judge, jury and executioner.

What should be done?

• Need develop a more transparent and participatory process: The government should work with civil society, media organizations, and other stakeholders to develop a more transparent and participatory process for determining what content should be considered fake or misleading.
• Need an independent and non-partisan fact-checking body:The government should ensure that anybody tasked with fact-checking is independent and non-partisan, with clear guidelines for how decisions are made.
• According to judicial guidelines:The government should ensure that any takedown requests are made in accordance with the procedures and safeguards laid out in Shreya Singhal v. Union of India or under Section 69A of the IT Act, which defines and restrict the conditions under which government can take down online content.
• Need to find a balanced approach:The government should engage in dialogue with social media platforms and other intermediaries to find a balanced approach to tackling fake news and misinformation, which takes into account the need to protect freedom of expression and the rights of media organizations, journalists, and readers.
• Need regularly reviewed and updated:The government should also ensure that any regulations or guidelines are regularly reviewed and updated to reflect the evolving nature of online content and the challenges associated with regulating it.