Centre set to notify fact check unit

The ministry of electronics and information technology is all set to notify the setting up of a fact-checking unit (FCU) to monitor content on social media concerning the business of the Union government under the recently amended Information Technology Rules, officials familiar with the matter said on Tuesday.

Speaking on condition of anonymity, two senior government officials said that ministry has readied the gazette notification, which might be published on Wednesday, to notify the Press Information Bureau’s FCU.

The will be issued under Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 under which all intermediaries are required to make “reasonable efforts” to ensure that its users do not “host, display, upload, modify, publish, transmit, store, update or share” any information that “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, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify”.

The Union government had on April 6, 2023 promulgated certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including a provision for an FCU to flag misleading content.

Last week, the Bombay high court refused to restrain the Centre from notifying the setting up of FCU until a third judge renders his opinion on whether the fact check amendment is unconstitutional.

The court passed the order on a bunch of interim application filed in petitions filed by standup comedian Kunal Kamra and others seeking a stay on the notification of FCU pending the final disposal of their pleas against the fact check amendment.

The petitioners have filed a plea in the Supreme Court challenging the high court order. The matter is slated to be taken up by the apex court on Thursday.

The petitioners had argued that predicating intermediaries’ protection from liability for third party content (that is, their safe harbour) on potentially removing “fake news” related to the central government would “coerce” them into censoring any content that could lead to a legal liability, thereby muzzling users’ speech online. They had also argued that for government content to be fact-checked by a government entity would lead to a significant conflict of interest.

Under the Rules, it is not clear what intermediaries –- which run the gamut of the entirety of the internet from social media platforms to cloud service providers to domain registrars to web hosts to internet service providers –- are supposed to do when the FCU labels any content as “patently false and untrue or misleading in nature”. Actions that have been discussed in the Bombay high court and within the IT ministry include labelling content as “fake” or “misleading”, and taking it down entirely.

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