Fresh off the heels of comedian Kunal Kamra, the Association of Indian Magazines is the next entity challenging the Indian government giving its fact-check unit powers to flag government-related information as fake, false, or misleading. The rule is unconstitutional and violates fundamental rights to equality, speech, and liberty, the industry body argued in its petition.
Released in April through an amendment to India’s platform regulation rules, the IT Rules, 2021, the fact-checking clause almost immediately courted controversy online for stifling free speech and news reporting on the government.
A few weeks later, Kamra challenged the rule at the Bombay High Court, citing free speech concerns similar to the magazine coalition’s. The government has since promised to defer notifying the amendment until July 10th. Kamra’s petition will be heard on July 6th and 7th, along with the magazine body’s and another challenge to the rule filed by the Editors Guild of India.
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Why it matters: If the current rule is notified, platforms would have to take action on government-related content flagged as ‘fake, false, or misleading’ by the government’s fact-checking unit. Failing to do so could compromise their safe harbour protections in India—which protects them from being held liable for third-party content.
“The impugned rules suffer from the vice of vagueness and over-breadth as phrases like ‘fake or false or misleading’ and ‘in respect of any business of the Central Government’ have not been defined … nor can these phrases be defined by attempting to do so,” the industry body argued. “These phrases also imply the presence of an objectively identifiably truth and establish a binary of ‘true-false’ for all online content related to the Central Government”. Vague and overbroad free speech restrictions were struck down by the Supreme Court in 2015’s Shreya Singhal v Union of India it added.
The Association of Indian Magazines comprises over 40 magazine publishers with a cumulative audience of 150 million Indians, including the India Today Group, Ananda Vikatan, Malayala Manorama, and the Outlook Group.
What did the industry body argue?
Rule introduces unreasonable restrictions on speech: Taking down “fake or false or misleading” content on the government is not a reasonable restriction on free speech, described in Article 19(2) of the Constitution. The rule is unconstitutional and violates fundamental rights to free speech held under Article 19(1)(a), the industry body argued, adding:
- Free speech restrictions disproportionate: Even if the rule fell under Article 19(2)’s ambit, it would have to satisfy the ‘third limb’ of the Supreme Court’s proportionality test—where fundamental rights are infringed on because doing so is the least restrictive alternative. That’s not the case here, the industry body argued. There are other less restricting measures the government could consider—like adding a disclaimer on online government-related content that it believes is incorrect.
- Induces chilling effects on free speech: Citizens will lack clarity about whether their speech will be prohibited and may engage in self-censorship in order to avoid violating the law. Platforms may also opt to take down content flagged as false by the government rather than lose their safe harbour status.
- Missing penalty scheme will hurt free speech: The rule lacks graded penalties to indicate the seriousness of violating it. Without this benchmark, platforms may overzealously take down content, which will restrict users’ free speech.
- Rules lack safeguards: The rule also fails the fifth limb of the Supreme Court’s proportionality test—where the state puts safeguards in place to prevent rights-infringements from being abused. The amendment includes no such safeguards, allowing content to be flagged as fake “purely on the basis of its [the government’s] subjective satisfaction”. There are no mechanisms for users to challenge these decisions.
- Dampens free press rights: A free press is an integral part of the right to free speech, the body noted, adding that the media provides the “principal vehicle of expression of information and views to citizens”. The right to know and receive information has also been recognised under Article 19(1)(a), including the right to receive, propagate, and circulate one’s views across the media. Laws disproportionately limiting access to information violate Article 19(1)(a) and cannot be saved by Article 19(2).
- Impacts government reportage: The industry body argued that multiple recurring takedowns of fact-checked information by platforms will reduce the members’ algorithmic reach. Member publishers may also engage in self-censorship and avoid publishing reports on the government.
Rules cannot expand the scope of parent legislation: Rules developed under a parent law, like the 2021 IT Rules are derived from the 2000’s IT Act, have to operate within the latter’s scope, the industry body argued, highlighting three areas of concern:
- Creates alternative blocking regime: Content blocking in India only happens on specified grounds in Section 69A of the IT Act—like sovereignty, defence, security of state, friendly relations with foreign states, public order, among others. “Fake, false, or misleading” content isn’t included as a content-blocking ground under Section 69A. The amendment effectively “creates an alternative blocking regime which is neither present nor authorised by the parent act”, the industry body argued.
- Contradicts Supreme Court verdict on content takedowns: In 2015’s Shreya Singhal v Union of India, the Supreme Court held that court or government content blocking order should conform to subject matters laid out in Article 19(2) of the Constitution. Unlawful acts outside of Article 19(2) could not “form any part of Section 79” of the Act, which lays out the conditions platforms have to follow to retain safe harbour. But, the amendment allows for safe harbour revocation on grounds beyond Article 19(2). It is beyond the ambit of Section 79 and in contradiction with the top court’s verdict.
- Amendment travel beyond powers of Sections 87(2)(z) and (zg) of the IT Act, 2000: The amendments were brought under these sections. They respectively give the government powers to develop Section 69A content-blocking rules and due diligence procedures for safe harbour under Section 79. They don’t empower the government to draw up content regulation rules—so the amendments travel beyond the powers of the sections they were grounded in.
Amendment permits the government to be a ‘judge in its own cause’: This may lead to content critical of the government being labelled as fake by its “selectively chosen fact-checking team”, the industry body warned.
- Amendment violates natural justice principles: Users have not been given an opportunity to be heard before the fact-checking unit decides that their content is misleading—nor are they provided with a mechanism to prove the contrary. They also are not provided with the details of why their content was flagged as fake, nor are they given a reasoned and speaking order. Overall, the IT Rules 2021 don’t provide “meaningful procedural guarantees” that allow the industry body or its members to contest the fact-checker’s verdict, the petition noted.
- Amendment is irrational and contrary to the rule of law: The IT Rules 2021 constitute class legislation—which confers “certain privileges upon a class of persons arbitrarily selected from a huge number of people”. In this case, only the Centre, not the states, is being given powers to censor or alter speech online. Class legislation is prohibited by the right to equality, held under Article 14 of the Constitution.
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