Draft IT Amendment Rules: Who Decides What is True?

Access to information and the democratisation of the media is a double-edged sword. While people can now access a repository of millions of informational sources at their fingertips within seconds, conversely it makes it all the harder to wade through the muck. The issue of fake news and misinformation campaigns is not news, rather it has become synonymous with content on the internet, which is now invariably viewed with a pinch of salt. The popularity of troll farms, click farms, deepfakes and face morphing technology have changed the media landscape entirely. As seen during the height of the COVID-19 pandemic, WhatsApp forwards with updates and doctors’ ‘opinions’ espousing the newest cures and home remedies made it clear that social media has become inundated with propaganda, misinformation, and falsities.

The Ministry of Electronics and Information Technology (the “MeitY”) released a set of draft amendments to the IT (Intermediary Guidelines & Digital Media Ethics Code) Rules, 2021 (the “Rules”) on January 2, 2023, which sought to make several changes to the Rules, particularly in the field of online gaming. Comments from the public were initially invited until January 17, 2023. To read more about the draft amendments, please refer to our previously published article on the subject. However, on January 17, 2023, the MeitY extended the deadline for submission of comments till January 25, 2023. The MeitY further considered certain amendments related to due diligence by an intermediary and released a fresh draft to the earlier amendment to the Rules (the “Draft Rules”) incorporating certain rules to this effect.1

To address this growing issue of unverified information wreaking havoc on the internet, the Draft Rules seeks to amend Rule 3 (1) (b) (v) of the Rules, which now require intermediaries, including social media intermediaries, significant social media intermediaries and online gaming intermediaries (as per the draft amendment rules released on January 2, 2023) to:

make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that … is identified as fake or false by the fact check unit at the Press Information Bureau of the Ministry of Information and Broadcasting or other agency authorised by the Central Government for fact checking or, in respect of any business of the Central Government, by its department in which such business is transacted under the rules of business made under clause (3) of article 77 of the Constitution.2

PIB Fact Check is an arm of the Press Information Bureau, which is in turn formed under the aegis of the Ministry of Information and Broadcasting, which was established in 2019 to verify news related to the Government and its policies and schemes. Interestingly, most PIB Fact Checks are disseminated through their Twitter handle, and these publications are not a court order, or even a notification from the Central Government. It is to be noted that the language of the Draft Rules is broad, extending the due diligence obligations of intermediaries to information classified as false by ‘any agency authorised by the central government for fact checking,’ which may have a vested interest in the very news it seeks to debunk. To this end, several concerns have been voiced regarding a conflict of interest that the Draft Rules may give rise to, namely with the Government (and its many arms or agencies) now being empowered to fact check information or reports on itself and directing any piece of news or information to be taken down by intermediaries. This may have a chilling effect on speech, and injunct certain pieces of news at the outset, without judicial scrutiny or even an independent fact-finding mission.

With increasing access to the internet, smartphones and social media we can see that the right to be informed is qualified by the danger of being misinformed. The fact-checking economy has evolved to address this complex and sophisticated issue, including the PIB Fact Check which has examined hundreds of pieces of news since its incorporation, including WhatsApp messages and articles by publications such as The Indian Express.3 There is also increased private-sector participation by companies including Twitter, which now fact-checks information uploaded to its platform and adds a cautionary message for information that it has been unable to verify as legitimate news, famously including a tweet by former American President Donald Trump.4 While the digital media landscape is evolving, the need to protect the average consumer has become crucial, given the advancements in technology and the increase in the reach of social media, the same needs to be balanced with concerns regarding excessive governmental oversight.

1 Ministry of Electronics and Information Technology.  Inviting Feedback on the Draft Amendments to the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 in Relation to Online Gaming. Available at: https://www.meity.gov.in/writereaddata/files/NOTICE-Updated.pdf

2 Ministry of Electronics and Information Technology. Revised IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 with Proposed Amendments. Available at: https://www.meity.gov.in/writereaddata/files/Revised-IT-Rules-2021-proposed-amended.pdf

3 PIB Fact Check. This Newspaper Report is Factually Incorrect and Based on Unverified Sources. Twitter, Twitter Inc., May 9, 2020. Available at: https://twitter.com/PIBFactCheck/status/1259103954304106496.

4 Katie Paul and Elizabeth Culliford. Twitter Fact-Checks Trump Tweet for the First Time. Reuters, Thomson Reuters, May 26, 2020. Available at: www.reuters.com/article/us-twitter-trump-idUSKBN232389.