Good riddance to suspect ‘fact-checking’

The Bombay High Court has done well to strike down as unconstitutional the Information Technology (IT) Amendment Rules of 2023, on the basis of which the government had formed Fact-Check Units (FCUs). The IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules had sought to empower the Central government to form fact checking units to identify "fake and misleading" information about its decisions and actions posted on social media platforms. The ruling was passed by Justice A S Chandurkar who served as a 'tie-breaker judge' after a division bench in January 2024 delivered a split verdict in the matter. The court held that the IT Amendment Rules violated Article 14 (right to equality), Article 19 (freedom of speech and expression), and Article 19 (1)g (freedom and the right to practise a profession). The court also said that the amendments unfairly differentiated between online and print content. 

The plan to set up FCUs to identify fake, false and misleading information about the government had become controversial as it curbed the freedom of expression of citizens. The government had established them in April 2023, and it was opposed by many individuals and organisations, including the Editors Guild of India. The Supreme Court stayed the notification establishing them. The rules empowered the government to ask social media platforms to remove any content which it thought was fake, false or misleading. The government would be the judge of the content, and social media intermediaries which did not comply with the government’s directive could lose the safe harbour status that gave them protection from legal and regulatory liability. A serious conflict of interest is inherent in the FCUs. The FCUs would be part of the Press information Bureau (PIB), which is an organ of the government. Judging what is posted about the government should not be the function of the government. Words such as ‘fake’ and ‘misleading’ are vague and can be interpreted in many ways. 

The High Court made the telling observation that under the right to freedom of speech and expression, there is no right to truth, and the state cannot insist that the citizens be provided only information that is not fake and false. It is not for the government to decide what is true, false or factual or what people should speak or write or read or listen to. Such restrictive rules, as the court noted, could have a ‘’chilling effect’’on individuals and social media organisations. The Editors Guild and digital rights groups have welcomed the judgement. Hopefully the government will not return to the restrictive amendments in some other form.