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Fact-Check Amendment Will “Impoverish” Political Discourse Online: Editors Guild of India Challenge at Bombay HC

Kamra, the Editors Guild, and the Association of Indian Magazines have all challenged the rule at the Bombay HC on similar grounds of shrinking free speech and unlawful policymaking.

The government’s controversial fact-check amendment will impoverish political discourse on social media, skewing it “unconstitutionally” towards a version controlled and endorsed by the Indian government, argued the Editors Guild of India in a challenge against the rule, filed at the Bombay High Court.

 “A level playing field for political speech and free flow of information to the citizen-voter about elected representatives and their performance form the cornerstones of a functioning democracy – the Impugned Rule annihilates both,” the guild argued in its petition, viewed by MediaNama

The amendment gives the government’s fact-check unit powers to flag government-related information online as fake, false, or misleading—platforms then have to take action against the content under India’s IT Rules, 2021 to retain their safe harbour protections. 

Released in April, the rule soon raised concerns of censorship online, with comedian Kunal Kamra challenging it at the Bombay High Court shortly after. The government has since promised to stay the rule’s notification until July 10th. The Editors Guild additionally seeks an interim stay on the rule while the case is ongoing.  

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Why it matters: Kamra, the Editors Guild, and the Association of Indian Magazines have all challenged the rule at the High Court on similar grounds of shrinking free speech and unlawful policymaking. However, the guild doubles down on the impacts it will have on the free press—a critical part of India’s democratic fabric that should ideally function without constrictions during an election year. 

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“If interim orders are not passed by this Hon’ble Court, the Petitioner, the news media profession, and democratic discourse in the country, will suffer irreparable loss and grave prejudice to its fundamental rights guaranteed under Article 14, 19(1)(a) and 19(1)(g) [the rights to equality, free speech, and to practice a profession, respectively].” — the Editors Guild of India’s petition. 

The guild also panned the provision when it was first proposed in January, alleging that it “will result in the censorship of the press”. The government then announced consultations on the provision, although the guild observed that “it is unclear whether this consultation was ever conducted” in its Bombay High Court petition.

Obliterates the “raison d’être” of free speech rights: The proposed amendment is the state’s attempt to monopolise the definition of ‘truth’ when it comes to its own actions, prohibiting the existence of alternative views. By leaving ‘fake, false or misleading’ information undefined, the amendment may end up covering both legitimate disagreements about facts, and varying interpretations of facts otherwise endorsed by the government. The government is entering the territory of controlling public opinion. This leads to the censoring of political speech—the protection of which forms the “very genesis” of Article 19(1)(a)’s free speech protections, the guild argued. 

Right to access (dissident) information constitutionally protected: Article 19(1)(a) also includes the right to be aware of current social, political, and economic issues, including wide-ranging opinions of them. The Constitution protects not just dissent, but the conditions for informed dissent, once described by Indian courts as the “best way to find the truest model of anything”, the guild argued. Removing politically dissident speech, a potential consequence of the amendment, impinges on these rights. 

Impacts well-balanced journalistic reporting: The amendment contradicts the fundamentals of journalism—reporting “all sides of the core issue or subject”—making it impossible for journalists to comply with this maxim endorsed by the Press Council of India. The amendment constitutes an “unreasonable restriction [on speech] travelling to the very heart of journalistic and political speech”. It also impacts journalists’ rights to practise their jobs—held under Article 19(1)(g).

5 examples of how the rule can impact the quality of discourse we receive: The Editors Guild of India laid out the following scenarios in its petition: 

  • Trained economists disagreeing with the government’s growth projection could find their online posts censored. This vitiates the idea that “dissent is the safety valve of democracy”. 
  • News portals could be coerced into taking down reports contrary to the government narrative. The guild cited the example of the Press Bureau of India’s fact-check unit labelling a Caravan report on COVID-19 prevention measures as “false” and “baseless”. 
  • Fact-check units aren’t required to provide reasons for why they flag content as fake. For example, an RTI activist could be censored if their posts unearth truths contrary to government narratives. 
  • Claims made by members of the opposition may be tagged as misleading. Fact-checking may be used to score political points. 
  • Documentaries televising state-sponsored pogroms could be removed from OTT platforms, the guild hypothesises. The documentary-maker can only appeal to the platform’s grievance redressal mechanism. “Given that the structure of the IT Rules 2021 is mischievously designed to encourage/incentivise active private censorship of content by intermediaries, the threat of loss of the safe harbour will cause intermediaries, and their grievance redressal committees, to over-censor online content in criticism,” the guild surmises.

Executive actions cannot undermine Supreme Court verdict on safe harbour and content blocking: In 2015’s Shreya Singhal v Union of India, the Supreme Court held that government content blocking should be on grounds mentioned under Article 19(2) of the Constitution, which lays out free speech restrictions. The amendment’s scope doesn’t fall within these grounds—making it beyond the scope of its parent law, the IT Act, 2000. “Parliament cannot, by way of an enactment, impliedly declare a decision of the court as erroneous or a nullity,” the guild argued. “Thus, unless and until Shreya Singhal is overruled by a larger bench, no legislative action, and much less any executive action can remove the basis of the judgment…Doing so, would amount to amending the basic structure of the Constitution (i.e. Articles 14, 19, and 21), which is impermissible after [the Supreme Court’s 1973 verdict in] Keshavnanda Bharati [sic].”

Fact check unit wasn’t the only way of preventing misinformation: The amendment fails the “necessity” prong of the Supreme Court’s test on whether state infringements on fundamental rights are necessary or not. Less restrictive measures exist, like counter-speech by the government, independent and certified fact-checking bodies, and existing remedies under the IT Act and the Indian Penal Code, 1860. India is home to the world’s largest community of certified fact-checkers, the guild added. This makes it unclear as to why the government believed the fact-check amendment to be the least restrictive measure. 

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The amendment “lacks an adequate discerning principle that is constitutionally acceptable,” the guild added. “It is, therefore, manifestly arbitrary,” and violates the right to equality held under Article 14 of the Constitution.

Other countries have paid the price of such fact-check laws: “Laws seeking to arrogate for the State the power what is true and ‘fake’, have become, without exception, a tool of State authoritarianism and informational autocracy,” the guild argued, citing the examples of: 

  • Russia: Its 2019 law blocking dissemination of information that was ‘unreliable’ or ‘disrespected the government’, was used to target journalists, particularly those criticising the country’s COVID-19 response and war on Ukraine. 
  • Singapore: Its 2019 law empowered an official to deem information, diminishing public information as false and order either its removal or correction. The law was used to target members of the opposition, NGOs, and activists. 
  • Turkey: Its 2022 law vested the state prosecutor with broad powers to determine information as false, despite opposition from political dissidents.

This post is released under a CC-BY-SA 4.0 license. Please feel free to republish on your site, with attribution and a link. Adaptation and rewriting, though allowed, should be true to the original.

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I'm interested in stories that explore how countries use the law to govern technology—and what this tells us about how they perceive tech and its impacts on society. To chat, for feedback, or to leave a tip: aarathi@medianama.com

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