A new draft of amendments to the Information Technology Rules, 2021 has been uploaded on the Union Ministry of Electronics and IT (MeitY) website on January 17. According to this draft, any news deemed as “fake” or false by the Press Information Bureau (PIB) will not be allowed on online intermediaries, including social media platforms. 

The Ministry has extended the time to submit feedback on the same to January 25. The deadline earlier was January 17. The feedback can be submitted on the following link: https://innovateindia.mygov.in/online-gaming-rules/

Moreover, the proposal also states that if any content is marked as “misleading” by “any other agency authorised by the government for fact-checking” or “in respect of any business of the Centre” will not be allowed on online intermediaries. This expands the scope of control since this does not just involve PIB, but can mean any government agency that can be empowered to control the news the people will consume.

The draft proposal seeks to add this amendment to Rule 3(1) – Due diligence by an intermediary, under clause (b)(v)

The intermediary… shall make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that,—

(v) deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature [or is identified as fake or false by the fact check unit at the Press Information Bureau of the Ministry of Information and Broadcasting or other agency authorised by the Central Government for fact checking or, in respect of any business of the Central Government, by its department in which such business is transacted under the rules of business made under clause (3) of article 77 of the Constitution]; (the emphasis indicates the proposed amendment).

The draft Rules (included in the IT Rules 2021) may be read here

Since internet service provider and web hosting providers also come under the definition of ”intermediary”, it means that if a piece of news has been flagged as fake or false by either the PIB or any other fact-checking agency authorized by the government, internet service providers will also have to disable the link to that particular news piece, reported Indian Express.

A report in IE pointed out that PIB itself has posted false news in the past. In 2020, the fact checking unit of PIB which was ;launched in 2019, posted on Twitter that recruitment notice of the Intelligence Bureau (IB) was fake, which was indeed genuine.

Criticism

“That is dangerous because it sets a scenario that any news item inconvenient for the government can be flagged as fake by the PIB fact-checking unit and then be taken down,” Prateek Waghre, policy director at the Delhi-based digital rights group Internet Freedom Foundation told The Indian Express.

The Editor’s Guild of India issued a statement raising concerns over this new draft. 

“At the outset, determination of fake news cannot be in the sole hands of the government and will result in the censorship of the press. Already multiple laws exist to deal with content that is found to be factually incorrect. This new procedure basically serves to make it easier to muzzle the free press, and will give sweeping powers to the PIB, or any “other agency authorised by the Central Government for fact checking”, to force online intermediaries to take down content that the government may find problematic,”reads the statement.

Further, the draft also uses the words “in respect of any business of the Central government” which means the government can deem anything to  be its “business” and can control the flow of news about its own functioning. This could also amount to a gag on comments on  government policy. “This will stifle legitimate criticism of the government and will have an adverse impact on the ability of the press to hold governments to account, which is a vital role it plays in a democracy,” said the Editor’s Guild statement.

The Guild had earlier raised concerns over the IT Rules, 2021 as well contending that the Union government is effectively empowered to block or delete any news published. 

It is pertinent ot note that Bombay High Court had, in August 2021, stayed the operation of Rule 9 of the 2021 IT Rules deeming it to be manifestly unreasonable and going beyond the IT Act. Rule 9 requires a publisher to have self-regulation as well as an oversight mechanism by the central government and also states that any publisher referred to in rule 8 who contravenes any law for the time being in force, shall also be liable for consequential action as provided in such law, which has so been contravened.

PIB is not always right

An IE report pointed out at least 3 instances where PIB had incorrectly done a fact check on some news:

• June 19, 2020: The Uttar Pradesh Special Task Force issues a list of Chinese apps, asking its personnel not to download them over security risks. The Press Information Bureau’s fact-check unit labels an image of the order on social media as fake, but a senior official confirms on record that the STF had issued the list.

• July 16, 2020: The PIB unit terms a news report in The Indian Express as ‘misleading’, relying on a Delhi Police statement that it did not follow the “spirit” of an order issued during the police’s investigation of the Northeast Delhi riots. The report quoted the police order.

• December 16, 2020: The PIB unit calls an Intelligence Bureau recruitment notice as fake. Next day, a division of the Information and Broadcasting Ministry redflags PIB’s fact check as inaccurate.

While it is commendable is that the government agency, PIB, has a fact checking portal. To make it the sole body to determine veracity of a news, however, is a strangulation of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. And since PIB majorly fact sheeta news related to the government, it would mean that all news about the government will be determined to be true or false by the PIB. Effectively, the PIB becomes the gatekeeper that will scrutinize all government related news and deem it to be fake or true. There is always a risk that the PIB could err or do so even by design term some legit news as fake, using this overreaching loophole — it is with regards to the business of the government. 

In a Parliamentary democracy where each member of the Parliament is elected by citizens of the country, the citizens have every right to know from as many sources possible, the business of the government. 

If the government starts controlling their news, their wrongdoings will never come to fore and this is an attempt at putting a veil on the real functioning of the government.

There have been instances where live streaming of Parliament sitting have been muted when opposition raises slogans against the government. In such a scenario, giving the government such absolute power to control news is not only detrimental to freedom of press but also threatens an important pillar of democracy and violates citizen’s right to information.

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