The Interim Order is a Potential Threat to Free Speech

Newsreel Asia Insight #160
March 14, 2024

The Bombay High Court has passed an interim order on the 2023 Information Technology (IT) Rules Amendment, particularly Rule 3(1)(b)(v), which has significant implications for freedom of expression. This rule empowers the government to establish a Fact Check Unit (FCU) and unilaterally declare online content related to the government’s business as fake, false, or misleading, which has raised concerns about potential censorship and the impact on free speech.

On March 13, the Court, by a 2:1 majority, declined to halt the Union government from activating its FCU, as reported by Live Law. 

The establishment of the FCU positions the government as the final authority on the veracity of online content. This could lead to a situation where the government has the power to label content as misleading or false, potentially stifling dissent and opposing viewpoints, which are essential for a democracy.

The rule may create a chilling effect, where social media intermediaries, to avoid legal battles, might pre-emptively remove content flagged by the FCU. This could lead to over-censorship, where even legitimate expressions of dissent or criticism are suppressed out of caution.

The verdict was split between Justices Gautam Patel and Neela Gokhale, reflecting a judicial divergence on the rule’s constitutionality and its impact on free speech.

Justice Patel’s view that the rule constitutes a form of censorship highlights concerns about the potential misuse of the FCU to suppress free expression. On the other hand, Justice Gokhale’s opinion that the rule is intra vires suggests a belief in the government’s restraint and the legal system’s ability to prevent misuse. This judicial uncertainty can lead to confusion and inconsistency in how the rule is applied and challenged, affecting the stability of free expression norms.

The amendment shifts responsibility to intermediaries, making them liable for user-generated content deemed false or misleading by the FCU. This could incentivise intermediaries to engage in self-censorship, erring on the side of caution by removing content that might be controversial but not necessarily false, thus further restricting free speech.

The interim nature of the order and the assurance that actions taken by the FCU will be subject to the final outcome of the petition. However, the long-term impact on freedom of expression will depend on the final judicial decision and the manner in which the FCU operates in practice.

The implications for journalists and the media at large are profound, as a previous Newsreel Asia Insight pointed out.

The Editors Guild of India has raised a significant flag regarding these initiatives, advocating for independent bodies rather than solely government-run ones to tackle misinformation. Their stance is not one of defiance but of foresight, recognising the potential for power misuse. Measures to protect the public from fake news must not become instruments of oppression, or the remedy should not exacerbate the ailment.

Such efforts are highly likely to deter journalistic practice due to the inevitability of minor reporting errors.

In the rapid pace of the digital news cycle, media may at times fail to fully verify facts before publication, resulting in the spread of incorrect or unconfirmed information. Will such content also qualify as fake news? It gets more complicated when considering the level of truth in satire and jokes, where the truth is often dressed up with a wink. Will the government’s fact-checkers appreciate the nuance, or will the jest be lost in translation, complicating the landscape for those behind the pen?

These complexities in combating misinformation can be exploited by those in power to target media outlets critical of government policies.