By Krishna Jha
In 1938, there were public bonfires of forbidden books in Italy. Militia was always present in such events to help keeping alive the flames and restrain any interruption. In fact, Mussolini had contended that “fascism requires military journalism”. In fascist Italy, the role of Mussolini as the prime censor was visible quite openly. Usually whenever there was the order to impose total blackout on a topic, or to pull out a story from the press, it was immediately organized and it happened almost every day.
Today, with digital revolution, there is the ever increasing speed through which the information is catered, and through social media, communication has become much easier and less time consuming. However, despite the speed, the sense of urgency intends to make it not only faster, but also to the liking of the ruling regime. For example there is the new education policy, which rarely leaves any space for sincere attempt to decipher objectively the historical process. It has to be written and understood according to the wishes of the state. It hardly matters if centuries of evolution are thrown into garbage despite the fact that they are all inalienable parts of life itself. It reminds one of the Italian fascist regime ruling over the country led by Mussolini when the social control was exercised by disinformation and also surveillance.
To decipher the theme of communication, especially with the social media gaining popularity and a vast space, it is getting difficult to get into the issue of disinformation. The Union government or its divisions have been working like the regulating entity. In the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendments Rules, 2023, the Union government has added a provision of a fact check unit to identify fake or false or misleading online content related to the government. Against such content identified by this unit, intermediaries, such as social media companies or net service providers, will have to take action or risk losing their protective measures in Section 79 of the IT Act, which allows intermediaries to avoid liabilities for what third parties post on their websites. This is unacceptable and problematic. Also, Section 69A of the IT Act, 2000 elucidates the procedure to issue takedown orders, which these notified amendments could bypass.
Without a right to appeal or the allowance for judicial oversight, the government cannot sit on judgment on whether any information is “fake” or “false” as the power to do so can be misused to prevent questioning or scrutiny by media organisations. Takedown notices have been issued by the government for critical opinion or commentary on social media platforms, with several having to comply with them and only a few such as Twitter contesting them in courts. By threatening to remove a platform’s immunity for content that is flagged by a government unit, it is clear that the Union government intends to create a “chilling effect” on the right to speech and expression on online platforms.
To keep the establishment — which includes the executive government of the day — on its toes and to speak truth to power is a non-negotiable and salient role of journalism in a democracy. In India, freedom of the press is guaranteed through Article 19 of the Constitution, with media rights and public right to free speech derived from this Article. It stands to reason that any relationship between the government and the media should be one kept at arm’s length, with the media having sufficient freedom. The government being the arbiter on what constitutes “false” or “fake” news and having the power to act upon platforms for publishing these will amount to draconian censorship. This power of censorship became a reality with a gazette notification.
The Ministry of Electronics and IT (MEITY) that had created the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 [IT Rules, 2023] authorised a fact check unit of the Central government in respect of, “any business of the central government”. This department is to scrutinise any online comments, news reports or opinions about government officials and ministries and then notify online intermediaries for its censorship. To promise accuracy, only facts will be stated, and the decision on citizen interest is to be left to the reader.
Also the power is meant to fill in details within the legislative intent and directions of the Supreme Court. There has been the Shreya Singhal judgment of the Supreme Court that had established that Section 79 and the IT Rules require intermediaries to have actual knowledge from a court order or be notified by the appropriate government in relation to the unlawful acts — these are reasonable restrictions under Article 19(2) of the Constitution. The Article 19(2) has no mention of the phrases “fake or false or misleading The IT Rules may be read under broader classifications such as public order, security of the state, and morality. Also the incorrect or inaccurate statement will not automatically become “fake or false or misleading.” The terms like “Fake or false or misleading” do not always come within reasonable restrictions, creating an unconstitutional power for government censorship. Even the IT Rules, 2023 do not define what constitutes “fake or false or misleading” information, nor do they specify the qualifications or hearing processes for a “fact check unit”. (IPA Service)