We live in an era where the line between opinion and facts is blurred. Fake news is peddled by political parties and fact-checking is done by groups and organisations that seem to have vested interests. Facts are contested and fake news is a stinging reality. A credible fact check organisation that can bring in accountability to content on social media is the need of the hour.
Most social media companies that identify as ‘intermediaries’ host third party or user generated content. Hence, they are protected by immunity clause and attract limited legal liability. This has led to a vast body of content on social media, unregulated and unchecked.
The government has now amended the Information and Technology Rules 2021. The change in Section 3 of the said rules has now given power to the government to flag ‘misinformation’ or fake news pertaining to government and its bodies. A special body will be set up after this amendment. The body shall be identified as the ‘fact check unit’ of the central government.
When this government body flags certain content on social media as ‘misinformation’ or ‘fake news’, Twitter and similar platforms are bound to take appropriate action. If the social media intermediary fails to act, they are likely to be sued for civil or criminal liability. The ordinary legal immunity given to the social media intermediary is vitiated.
The amendment and its effect can be broken into three parts.
First, the government has reserved the right on information pertaining to central government. Only the information about the central government shall be covered under this changed rule.
Second, the government-authorised body shall have the role and responsibility of flagging such content. The body shall be appointed by the central government for ‘fact-checking’.
Third, the word of this body will have an element of finality to it. If it says something is fake news, the item must be taken down or the company faces the music in a court of law.
Let’s assess the proportionality of this move. All information pertaining to central government shall be covered under this change. Critics and the Opposition argue that any alternative narrative or conclusions over government performance or any other matter of public interest shall be muzzled through this change. It remains to be seen how broadly or sparingly the government uses this power. If the power is used sparingly and judiciously, then it might pass the test of proportionality. Any sweeping exercise of the power unchecked can take this debate to the doorsteps of the court.
There are many questions over the form and composition of the proposed body responsible for fact-checking. How many members would the body have? What kind of mechanisms shall it adopt? Would it have avenues for hearing complaints? Would it operate with a certain degree of autonomy? The composition of the body, its powers and the manner of its functioning shall be decisive in gauging and understanding the proportionality of the government’s move.
Friction between social media giants and democratically elected governments has been witnessed across the world. Bringing accountability and making these global giants compliant with the law of the land has been a tedious task for the courts and the government.
The latest move of the government sets the stage for more such confrontations in the run-up to the 2024 Lok Sabha elections. If democracy is often a contest between the citizen and the might of the state, then social media giants have now become a part of this dynamic equation. These intermediaries claim to be the democratic platform, representative of democratic temper and diverse views. But political inclinations, lack of accountability and various other ills of social media giants have been a headache for governments across the world.
With the latest change in the IT Rules, anything and everything said on social media about the central government can be under scrutiny.
As argued earlier, everything depends on the way and to the extent this power is exercised. Every opinion, comment, or word on social media about the central government cannot be ‘fact-checked’. Chaos, sharp views, or even misplaced opinions are part of any vibrant democracy. The amendment to the IT Rules for curbing fake news are absolutely necessary, but the powers vested must be exercised carefully, judiciously and in the larger public interest beyond political gains.
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