Govt notifies Press Information Bureau’s Fact Check Unit under IT Rules

NEW DELHI: The ministry of electronics and information technology on Wednesday notified the Press Information Bureau’s (PIB) Fact Check Unit (FCU) as the fact check unit of the central government to vet all online content related to the business of the central government, a move that comes days after the Bombay high court on March 13 declined to restrain the Centre from notifying the unit and a day before the Supreme Court is slated to hear the matter.

“...the Central Government hereby notifies the Fact Check Unit under the Press Information Bureau of the Ministry of Information and Broadcasting as the fact check unit of the Central Government for the purposes of the said sub-clause, in respect of any business of the Central Government,” the ministry said in its brief gazette notification on Wednesday.

The Union government 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 notified by the IT Ministry to identify “fake or false or misleading” online content related to the business of the central government.

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.

The rules also require all intermediaries 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”.

HT reported that the government’s FCU notification could be issued as early as Wednesday.

Satirist Kunal Kamra, Editors Guild of India and Association of Indian Magazines challenged the April 2023 fact check amendment in the Bombay High Court on the grounds that it was unconstitutional, a violation of the right to freedom of speech of users online, and was ultra vires of the parent act.

A two-judge bench of the high court comprising justices Gautam Patel and Neela Gokhale delivered a split verdict on the FCU on January 31. While justice Patel struck down the amendment stating it amounted to censorship, justice Gokhale upheld the fact check rule saying they do not have any chilling effect on free speech.

The case was referred to the third judge, justice AS Chandurkar who is yet to decide on the matter.

On March 11, Justice AS Chandurkar rejected the pleas filed by satirist Kunal Kamra, Editors Guild of India (EGI) and Association of Indian Magazines (AIM), seeking a stay on setting up of the FCU till the reference to the third judge was decided. The matter was referred back to the division bench for operative orders. Citing majority, the division bench on March 13 effectively permitted MeitY to notify the FCU even as the main matter remains undecided.

Dismissing the pleas, justice Chandurkar said, “Notifying the FCU would not result in an irreversible situation for the reason that any action taken post notifying the FCU would always be subject to the validity of Rule 3(1)(b)(v) which is under challenge.”

On March 14, the Editors Guild of India and Kunal Kamra filed a special leave petition (SLP) in the Supreme Court challenging the Bombay high court’s refusal to grant a stay on the creation of the government-led fact check unit.

According to the Supreme Court’s cause list, the SLPs by Kamra, EGI and AIM are slated to be heard on Thursday. The petitioners 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 legal liability, thereby muzzling users’ speech online. They also argued that for government content to be fact-checked by a government entity would lead to a significant conflict of interest where the government would decide what is true about itself.

PIB, the government’s communication arm, first announced the setting up of the Fact Check Unit in a post on X, formerly Twitter, on November 29, 2019. According to PIB website, the unit is headed by a senior director general/additional director general level officer of the Indian Information Service (IIS) and its day-to-day operations are handled by IIS officers at various levels. “The Unit reports to the Principal Director General, PIB who functions as the Principal Spokesperson of the Government of India,” the website added.

Senior advocate Gopal Sankaranarayanan said he believed the government’s order violates the Model Code of Conduct that seeks to provide a level playing field to political parties.

“This Fact Checking Unit activates the rule of the IT Rules that were notified on April 6, 2023. As a consequence, any statement can be notified as fake or false or misleading by the government and action will have to be taken by the intermediary. Apart from the fact that they waited almost a year to notify this when the rules are under challenge in the courts, it amounts to a violation of the Model Code of Conduct because it permits the misuse of official mass media for projecting a view that would be sympathetic to the party in power in the garb of truth,” he said.

Chapter VII of the MCC requires the party in power to “scrupulously” avoid “the misuse of official mass media during the election period for partisan coverage of political news and publicity regarding achievements with a view to furthering the prospects of the party in power”.

Suhaan Mukerji, partner at PLR Chambers, however, disagreed, underlining that the government decision would not influence voters.

“The restriction in the model code of conduct is limited to announcements of policy, a project or scheme that can influence the voting behaviour. The notification of the fact check unit cannot lead to voters voting one way or another and therefore it is kosher as far as the model code of conduct is concerned. In any event, the intention to notify such a unit was publicly known for over a year and the notification at this point in time is merely because a legal impediment, which tied the hands of the government from acting sooner, was removed by the court,” he said.