The Tamil Nadu government’s recently announced state-level unit for fact-checking online information saw its first legal challenge through a Public Interest Litigation filed at the Madras High Court, The Hindu reported yesterday.
In his petition, the Joint Secretary of the All India Anna Dravida Munnetra Kazhagam’s Information Technology department R. Nirmal Kumar argued that the unit harms the free speech rights of citizens and of opposition parties.
About the unit: The Tamil Nadu fact check unit can act based on complaints it receives about government-related fake news, misinformation, disinformation, and hate speech on any “media platform”, and has suo motu powers too. The unit will investigate the authenticity of the contents—and if found to be fake, will “place” fact-checked information across platforms (like Facebook, Instagram, YouTube, and X/Twitter).
Kumar’s petition moved the court to declare the government order setting up the unit unconstitutional, additionally requesting that it issue a stay order against the unit’s Mission Director from continuing work. Kumar also accused the ruling Dravida Munnetra Kazhagam government of appointing a party sympathiser as the unit’s director (an allegation also repeated by political commentators).
“Addressing hate speech does not mean limiting or prohibiting freedom of speech. It means keeping hate speech from escalating into something more dangerous” – UN secretary General, António Guterres
I am appointed as Mission Director for the Fact check unit under the…
— Iyan Karthikeyan (@Iyankarthikeyan) November 1, 2023
Kumar alleged that the government lacked the authority to set up the unit outside the police department’s existing censorship framework. In 2020 in a separate case, the Madras High Court directed the Director-General of Police to constitute “special cells” across Tamil Nadu’s police stations to crack down on “derogatory and unsubstantiated” social media posts about “Constitutional functionaries and other dignitaries”. The police confirmed that the cells had been set up in a connected case, which the High Court closed earlier this year.
MediaNama has reached out to Kumar for a copy of the petition.
Why it matters: The last year has seen a spate of fact check units crop up across the country to address India’s ‘misinformation’ problem. There’s the Indian government’s proposal to create a state-appointed unit to fact-check government-related online content (which has been stayed during multiple constitutional challenges against it filed before the Bombay High Court). There’s the Karnataka government’s proposal to use advanced technologies to predict and pull down misinformation online, a project that was introduced amidst rumours of misinformation being spread online in the run-up to the 2024 general elections. Now, we have the Tamil Nadu government’s attempts at regulating the accuracy of information online.
While there are political differences behind the governments bringing these units, one thing appears common—these are seemingly government-appointed bodies being empowered to determine what the ‘truth’ is in India’s corner of the Internet. As was repeatedly argued before the Bombay High Court challenges against the Indian government’s proposals, this conflict of interest could lead to the unit flagging opinions that are critical of the government as ‘fake’, leading to political censorship online at the cost of citizens’ free speech rights. The Bombay High Court’s judgment in the case is expected on December 1st—its verdict on the constitutionality of the Indian government’s efforts may help determine the legitimacy of similarly-placed fact check units down south.
Keeping up with the legal arguments against the Indian government’s unit: We’ve reported extensively on the fact check amendment, the challenges to it, and the in-court proceedings. Here’s our list of top reads:
- April 2023: Our breakdown of the government’s plans to fact-check government-related information online. [Read]
- April 2023: The amendment faces its first legal challenge with political satirist Kunal Kamra’s Bombay High Court petition. [Read]
- June 2023: The IT Ministry informs the Bombay High Court that the amendment won’t go into force before July 5th, 2023. [Read] In June, the IT Ministry extends the stay until July 10th. [Read]
- June 2023: The Association of Indian Magazines files its challenge against the amendment at the Bombay High Court. [Read]
- June 2023: The Editors Guild of India files its challenge against the amendment at the Bombay High Court. [Read]
- June 2023: Government defends fact check amendment in affidavit filed before Bombay High Court, says fake speech adversely impacts society and requires regulation. [Read]
- The hearings:
- July 2023: Senior Advocate Navroz Seervai appearing for Kunal Kamra questions the government’s ‘nanny state’ approach to dealing with misinformation. [Read]
- July 2023: Justice G.S. Patel raises questions on the authority being conferred to the fact check unit. [Read]
- July 2023: Justice G.S. Patel asks whether the offline printed versions of online information will also be censored. [Read]
- July 2023: Petitioners critique the lack of definitions in the amendment, including of ‘fake’, ‘false’, ‘misleading’, and ‘business of the Central government’. [Read]
- July 2023: Petitioners argue that the fact check amendment violates proportionality tests, which measure infringements on fundamental rights like free speech. [Read]
- July 2023: Petitioners critique the multiple free speech concerns raised by the fact check amendment, including on dissent, journalism, and more. [Read]
- September 2023: Solicitor General Tushar Mehta opens the government’s defence of the provision, argues that it is ultimately the courts who decide on the validity of an intermediary’s decision on a fact check notice. [Read]
- September 2023: Petitioners respond to Mehta’s defence, arguing that it implies that choosing to keep up content will lead to loss of safe harbour. [Read]
- Indian Government Can Now Fact Check And Censor Any News Related To The Government: Amended IT Rules
- Quick Take: India’s New News Censorship Rule Is Undemocratic
- Karnataka IT Minister Shares Details Of State Unit Fact-Checking Online Content: Reports
- Tamil Nadu Government Sets Up Fact Check Unit To Flag Fake News, Misinformation
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