The Central government introduced a new amendment to the Information Technology Amendment Rules, 2023 for Open, Safe, Trusted, and Accountable Internet usage. This amendment empowers the Ministry of Electronics and Information Technology (MeitY) to create a "fact check unit" to identify false or misleading content online.
Along with that, if the social media intermediaries fail to prevent users from hosting or publishing flagged information, their "safe harbour" immunity, will be withdrawn which could expose them to criminal prosecution. This can have negative implications for freedom of speech and civil liberties guaranteed by the constitution of India. With the new provisions, the Union government is empowered to determine what information is false and exercise censorship. This may hinder free information as the content can be withdrawn after the Union Government decides it is false.
In the era of digitalization, the spread of misinformation can lead to serious consequences for individuals, communities, and even nations. The government has attempted to address this issue through the instant amendment made to the IT Rules. However, concerns remain about the impact of these amendments on the freedom of speech and expression guaranteed under the Constitution of India.
Section 79 of the Information Technology Act, of 2000 deals with immunity to intermediaries, as long as they follow due diligence and state-prescribed guidelines. It states that no person providing any service as a network service provider shall be liable under this Act, rules, or regulations made thereunder for any third-party information or data made available by him if he proves that the offense or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offense or contravention. For the purposes of this section, "network service provider" means an intermediary, and "third party information" means any information dealt with by a network service provider in his capacity as an intermediary.
The Information Technology Act, of 2000 was amended in 2008 to provide an exemption to intermediaries from liability for any third-party information. After that, the IT (Intermediary Guidelines) Rules, 2011 under the IT Act specified the due diligence requirements for intermediaries to claim such exemption. Later on, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 replaced the 2011 Rules. In April 2023, the Government introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.
The most debated provision regarding the new rules is the power of the union government to remove any online content that it deems false or misleading. In such a situation, social media platforms and intermediaries will be deprived of the protection of the “safe harbour” if they do not comply with government orders. The issue is regarding “in respect of any business” which is not defined anywhere and is very large in its scope. It can have a negative effect on the right to freedom of speech and expression.
The Rules require the “social media intermediary and significant social media intermediary” (such as Twitter, Facebook, etc.) and Online Gaming Intermediary to inform their users not to 'host, display, upload, modify, publish, transmit, store any information which is 'identified as fake or false or misleading by a fact check unit of the Central Government' in respect of any business of the Central Government.
If the information has been flagged as false or misleading, intermediaries need to take down the content. The fact check unit of the Central Government can instruct intermediaries (including social media sites) not to host such false or misleading content.
Further, online gaming Platforms will have to register with a Self-Regulatory Body (SRB) that will determine whether the game is permissible. After receiving such permission, the online gaming intermediary has to display a demonstrable and visible mark of verification of such online game by the online gaming self-regulatory body on such permissible online real money game. It is the responsibility of the platform to ensure that online games do not involve any gambling or betting elements and that compliance with legal requirements, standards, and safety precautions such as parental controls shall also be ensured.
The Supreme Court of India has taken cognisance of the issue in the case of Kunal Kamra v. Union of India[1] wherein the issue before the apex court is:
The challenge in the instant case is with respect to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules 2023) notified by the Ministry of Electronics and Information Technology which direct social media intermediaries (such as Facebook, Twitter, etc.) to remove any news related to the “business of the Central Government” that is deemed “fake, false, or misleading” by a fact-checking unit established by the Union Government.[3] It is further challenged that the formation of a fact-check unit contradicts Section 79 of the Information Technology Act, 2000 (IT Act) which protects social media intermediaries from liability of user-generated content.
Reliance was placed on Shreya Singhal v Union of India[4], where the Supreme Court mandated that notifications to take down content should be issued through a court order however, the IT Rules 2023 enables the Union Government to address the social media intermediary directly by acting both “the Judge and the Prosecutor.” the petition further claims that the IT Rules 2023 violate Articles 14,19(1)(a) and 19(1)(g) of the Constitution for running afoul of principles of natural justice, freedom of speech, and prevent from engaging in political satire.
The Union responded to the instant petition stating that the Rules are issued in “public interest” to prevent the spread of “false news.” As far as FCU is concerned, they argued that the same will be carried out based on evidence. The aggrieved persons can approach a court if they feel their information is wrongfully flagged and taken down.
The petitions filed in the Bombay High Court by the Association of Indian Magazines (AIM) and the Editors Guild of India challenging the same IT Rules 2023 were clubbed with Kamra’s petition.
Bombay High Court delivered a divided ruling on the petition challenging the notification for establishing a fact-check unit under the amended IT Rules.[5] The bench, comprising Justices Gautam Patel and Dr. Neela Gokhale, issued a split verdict on January 31, 2024. Justice Patel expressed concerns over the broad powers granted to the government's fact-check unit, which he termed as the "sole authority" to determine the truth or falsity of information. He highlighted the subjective nature of concepts like "misleading" and the lack of absolute truths in human history. Patel argued that social media intermediaries, being a "vulnerable segment," would likely comply with takedown requests from the government's fact-check unit, risking the suppression of opposing viewpoints. On the other hand, Justice Gokhale disagreed, stating that intermediaries would not lose their safe harbour protection unless they failed to remove content falling within the reasonable restrictions under Article 19(2) of the Constitution. She emphasized that aggrieved parties could seek remedies from competent courts, making them the "sole arbiter" and not the government. Gokhale dismissed concerns of bias against the fact-checking unit solely because it was appointed by the government, considering the challenge premature based on the anticipation of potential abuse. Following the split verdict, Kunal Kamra approached the Bombay High Court seeking an interim stay on the notification of the fact-check unit. However, Justice A.S. Chandurkar declined to grant a stay, on the ground that notifying the unit would not create an irreversible situation, as any action taken would be subject to the validity of the amendment which is still undecided due to the split verdict. Aggrieved by this, Kamra approached the Supreme Court against this decision of the single judge. Meanwhile, the Union notified the fact check unit. The bench of Chief Justice D.Y. Chandrachud with Justices J.B. Pardiwala and Manoj Misra has put a stay on the Union’s notification establishing the fact check unit. Hence, this matter remains sub jucide.
MeitY has been designated as the nodal ministry for online gaming. However, Online gaming was not previously regulated under the IT Act, 2000. These are now regulated under the 2023 Rules. The definition of "online gaming intermediaries" remains very broad, leading to ambiguity. The term "wagering" used in the criteria for "permissible online real money game" is not elaborated upon, leaving the classification up to the interpretation of the self-regulatory body.
Online gaming intermediaries that enable access to permissible online real money games are required to display a visible verification mark from an online gaming self-regulatory body for such games. While informing users about rules, privacy policy, terms of service, etc., these intermediaries must include specific information for each permissible online real money game like the policy on withdrawal/refund of deposits, determination and distribution of winnings, fees and charges payable by the user.
Before accepting any deposits from users for permissible online real money games, online gaming intermediaries must identify and verify the user's identity following the procedures applicable to entities regulated by the Reserve Bank of India for customer identification like Know-Your-Customer. Importantly, online gaming intermediaries enabling access to such games cannot directly finance or enable third-party financing for the purpose of playing these online real-money games.
Further, as per Section 4A, the Ministry can designate self-regulatory bodies to verify online real money games. These bodies must be companies registered under section 8 of the Companies Act, 2013, with membership representing the gaming industry and promoting responsible gaming. Their boards must include experts from various fields, and their articles must ensure conflict-free operations, member accountability, clear membership criteria, and Ministry-approved amendments. These bodies must have financial capacity. They can declare a game permissible if it does not involve wagering and complies with relevant laws, initially relying on applicant information for up to three months. They must publish verified games and member lists online. Verification can be suspended or revoked if rules are not followed. The bodies must publish frameworks for protecting sovereignty, user safety, child safeguards, and preventing addiction and financial harm. The Ministry may require information disclosure and consider published verification details before issuing directions under section 69A of the Act. A grievance redressal framework must be published, with complaints acknowledged within 24 hours and resolved within 15 days. The Ministry can direct rectifications for non-conformities and suspend or revoke designations if necessary, with interim directions for user access to games.[6]
The 2023 amendment raises several concerns due to its failure to define various terms like “fake news” and "any business". Further, the act allows the government's fact-check unit immense powers to declare the veracity of any news "in respect of any business" as invalid. The use of undefined words gives the government unchecked power to decide what content should be available on internet. The rules come face to face with the protections provided under Article 19(2). A lawfully enacted statute should adopt less restrictive alternatives to removing misinformation. In the guise of misinformation and the fear of facing a penalty, Intermediaries will remove information deemed false by the Fact Check Unit. The new regulation gives the government the power to decide what is fake or false. The rights of the press and individuals to speak truth will be curtailed along with civil liberties. This wrong was undone by the Supreme Court's Judgment in Shreya Singhal vs Union of India wherein the Supreme Court held that a law that limits speech should not be vague nor over-broad. In this situation, it becomes pertinent for the Supreme Court to step in one more time for Balancing Misinformation and Free Speech of individuals. The case of Kunal Kamra can be an appropriate occasion for the court to balance these two important facets of free speech i.e. government’s initiative to curb misinformation and citizen’s right to freedom of speech and expression.
[1] SLP(C) No. 6871-6873/2024
[2] Supreme Court Observer, “Challenge to the IT Rules 2023”, available at https://www.scobserver.in/cases/challenge-to-the-it-rules-2023/
[3] Supreme Court Observer, “Challenge to the IT Rules 2023”, available at https://www.scobserver.in/cases/challenge-to-the-it-rules-2023/
[4] AIR 2015 SC 1523
[5] Information Technology Amendment Rules, 2023
[6] Gazette Notification for IT Amendment Rules, 2023, available at https://www.meity.gov.in/writereaddata/files/244980-Gazette%20Notification%20for%20IT%20Amendment%20Rules%2C%202023-%20relating%20to%20online%20gaming%20%26%20false%20information%20about%20Govt.%20business.pdf