This is the first of a series of articles. Read the second, third, and fourth parts.
“This amendment is limited to…[fact-checking] digital media. Could you have done this for print?” Justice G.S. Patel asked last week, after hearing submissions challenging the constitutionality of the Indian government’s plan to give a government-appointed unit powers to fact-check government-related information online.
Across three days last week, multiple parties challenging the law before the Bombay High Court argued that it arbitrarily stifles free speech rights online, held under Article 19(1)(a), at the cost of keeping Indian citizens informed and engaged on dissenting views. The government has since promised to stay the law’s notification until July 28th.
“There are many journals that are both in print with the identical content online,” Patel continued. “Is it being suggested that the same content in print will go through, but if online, is fake, false, or misleading?…[Also] This form of control by a fact-check unit, does it exist for print media? Because if it doesn’t exist for print media then merely because of the medium [the government] surely cannot make a difference…Does this tell us what it is that the government intends to do? It’s not going to address itself to material that is in both print and online, but simply to that which is strictly online, and in some objective fashion, fake, false, or misleading…”
While the Judge didn’t expect the galaxy of lawyers present to answer immediately, Advocate Shadan Farasat appearing in the Editors Guild of India’s challenge against the law replied that “the government has not addressed that dichotomy at all in its affidavit.”
The article continues below; you might also want to read:
- Kunal Kamra Challenges IT Rules Fact-Check Amendment In Bombay High Court
- Association Of Indian Magazines Next To Challenge Fact-Check Amendment At Bombay HC
- Fact-Check Amendment Will “Impoverish” Political Discourse Online: Editors Guild Of India Challenge At Bombay HC
- We Are Not Concerned By The Identity Of The Fact-Check Unit, Rather The Authority Being Conferred On It: Bombay HC
Senior Advocate Navroz Seervai appearing in satirist Kunal Kamra’s challenge went on to read between the lines of the government’s reasoning. “What they harp on about is the reach, the permanence, and the virality,” Seervai explained. “I suppose they haven’t said it, but as all of us know that phrase, that today’s newspaper is tomorrow’s vegetable man’s wrapping paper. The newspaper is for the day, its reach is relatively limited…[and] there is oversight…in a newspaper…before something ultimately gets printed.”
“But, that’s exactly what I’m asking,” Patel replied. “Suppose you open up the newspaper, take a shot of [an article], and post it to Twitter, is it being suggested the Twitter post will be ordered to be deleted, but nothing can be done about the one that’s in print?…That can’t be a metric…Fake, false, and misleading [in the amendment] speaks to content [regulation]. It doesn’t speak to the medium…”
Farasat agreed, clarifying that what the government is really trying to target is circulation. “They have not hit the content…Because in print it continues,” Farasat pointed out. “The news is consumed primarily, not exclusively, through the digital medium today. They know that if they bar it on a certain medium, the circulation of that news will go down, [although] it will not be eliminated. My respectful submission is under Article 19(1)(a), I have a right not just over the content, but also over its circulation too.”
“The effect of the rule is that the conformist speech, that is speech which is in line with what the government’s view, is given the biggest megaphone or loudspeaker,” Farasat continued. “The fact that you are barring it [speech] in one medium and not in another, when those mediums are totally interchangeable in how they operate today, by itself makes the legality of this [rule] suspect…It makes it arbitrary straight away…it hits Article 14 [the right to equality].”
Seervai had earlier observed that the law was a “classic textbook case of discrimination under Article 14 [the right to equality],” and ought to be struck down on these grounds as well.
The Supreme Court already limited overbearing regulation of online content in Shreya Singhal: Responding to Justice Patel’s question on why the government was choosing to regulate online information relatively strictly compared to print media, Advocate Gautam Bhatia, appearing in the Association of Indian Magazines’ challenge, recalled the Supreme Court’s 2015 verdict striking down Section 66A of the IT Act for unconstitutionally outlawing ‘grossly offensive’ speech online.
“The government, when defending Section 66A, had actually made precisely the same argument, saying that the reach and the virality of online speech is much greater and therefore requires greater regulation,” Bhatia pointed out. “The Supreme Court answered that in [its Shreya Singhal judgment]…it said that to the extent that there could be certain offences that might only be committed online, there could be a difference [in regulation]. For example, [for] online pornography or hacking, to that extent, the State can carve out specific offences…So, only for this purpose…can a distinction be drawn constitutionally between [restrictions on] online speech and offline speech.”
There are less restrictive ways to control misleading online speech, Bhatia cites the example of Twitter’s community notes: “I want to flag one interesting development with respect to social media intermediaries [to address the issue of misinformation], and that is something called ‘community notes’ on Twitter,” Bhatia continued.
“What they do is, if there is a tweet that is potentially misleading or disinformation, they attach a community note to that, which starts with the phrase ‘readers thought that you might want to know this context’,” he explained. “Then they contextualise that speech. That community note is like a shadow. So, wherever the tweet goes, like a shadow, the community note goes with the tweet…Now, of course, this is not a panacea and there’s a debate on whether this is sufficient or not. But, [it’s] just to flag that there are less restrictive alternatives possible that do not require this safe harbour deprivation.”
Starting today, you’ll get a heads up if a Community Note starts showing on a Tweet you’ve replied to, Liked or Retweeted. This helps give people extra context that they might otherwise miss. pic.twitter.com/LIcGgl2zdJ
— Community Notes (@CommunityNotes) February 21, 2023
Introduced through an amendment to India’s platform regulation rules, the IT Rules, 2021, platforms will lose safe harbour, or protection from liability for third-party content, for failing to take down the flagged ‘fake’ information. Safe harbour is held under Section 79 of the IT Act, 2000.
The amendment isn’t innocent, knowing attempt to control information: “What they say on [say, for example] AajTak YouTube channel, India Today YouTube channel, or Sun TV YouTube channel. That’s where the people go [for information, not newspapers],” said Senior Advocate Arvind Datar appearing for the intervenor, the News Broadcast and Digital Association, perhaps quietly underscoring the decline of print media across the world. “And I’m telling you that this [amendment] is not done in innocence. It’s not done just notification has got a lot of purpose behind it. They know that today the major source of information is the social platform. [If] You are able to control that, then what people will know will be regulated by you. That is the danger.”
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