Is this Amendment good or bad?
In the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, the Union government’s fast-check unit to identify fake or false or misleading online content related to the government, there is question about whether it falls within the constitutional rights of the Government? The amendment binds the intermediaries, such as social media companies or net service providers, to take action or they risk losing their “safe harbour” protections in Section 79 of the IT Act, the provision which allows intermediaries to avoid liabilities for what third parties post on their websites. This amendment has many problems. Also, Section 69A of the IT Act, 2000 elucidates the procedure to issue takedown orders, which these notified amendments could bypass.
Without a right to appeal and to judicial oversight, this makes the government to sit on judgment on whether any information is “fake” or “false”. The power to do so can be misused to suppress media and to prevent them from questioning or scrutiny. In the recent past takedown notices have been issued by the government for critical opinion or commentary on social media platforms, with several were to comply with them and only a few such as Twitter contesting them in courts. By threatening to remove a platform’s immunity for content that is flagged by a government unit, it is clear that the Union government intends to create a “chilling effect” on the right to speech and expression on online platforms. In India, freedom of the press is guaranteed through Article 19 of the Constitution, with media rights and public right to free speech derived from this Article. It stands to reason that any relationship between the government and the media should be one kept at arm’s length, with the media having sufficient freedom. The government being the arbiter on what constitutes “false” or “fake” news and having the power to act upon platforms for publishing these will amount to dictatorial censorship, more like emergency days. We request the Supreme Court Constitution bench to take news item about the amendment as suo moto Public Interest Litigation petition and clarify if it is ultra vires to freedom of the press guaranteed through Article 19 of the Constitution rights or not.