It was inevitable that internet regulation would tighten, given the dangers of an online free-for-all. But the revisions of IT Rules 2021 that were notified on 6 April by India’s ministry of electronics and infotech have made even advocates of oversight mutter ‘be careful what you wish for.’ To protect online gamers from harmful depictions, gambling and addiction, self-regulatory bodies are to be set up that will vet games for that purpose; an emerging industry’s fortunes could turn on how restrictive this idea turns out to be. What has generated greater worry, however, is the watchful eye that a government fact-check unit will be asked to keep on intermediaries like social media platforms for “fake or false or misleading” content “in respect of any business of the Central government.” This fact-checker will identify uploads for removal that tick this either-either-or ban checklist, failing which the host platform could be denied ‘safe harbour’ from legal prosecution for what others upload. This particular rule has evoked howls of protest and could be dragged to court for a close look at its consistency with guidelines laid down in the Shreya Singhal case of 2013, which forced a review of Section 66A of the IT Act that was being misused wantonly to muzzle free speech. Just days before new IT rules were notified, the apex court had spot-lit the vitality of media freedom to democracy in the context of an Indian TV channel taken off air for what was found to be mere criticism of government actions.
The Editors Guild of India slammed the fact-check rule as “draconian” and “akin to censorship,” pointing to lack of clarity on how the fact-checker would be governed and allow redressal of faulty calls. The Internet Freedom Foundation (IFF) went further, arguing that the rule would “cement the chilling effect on the fundamental right to speech and expression,” particularly on publishers of news. If ‘misleading’ posts are banned, IFF pointed out, then its wide scope for interpretation would make it easy for a fact-checker to abuse its authority. In any case, setting the truth apart from falsehood has become an epistemic challenge in what began as ‘the Information Age’. A great social-media blur has heralded an era of ‘post-truth’, but arguing over what Oceania refers to is one thing, the rule of law quite another. The latter needs clarity. A loosely defined ban on stuff that can boil down to a clash of views would imbue a state-run agency with power over our online life that can be exercised in arbitrary ways. In a polity as polarized as we have today—as evident in a reflexive split over the relative relevance of Mughals to Indian history—opacity in the Centre’s oversight of chatter or posts about itself should disturb us.
All rule-making and rule enforcers must pass a key test: Whatever is sought to be instituted must outlast changes in every domain. Not just in technology, which happens to move fast, but also shifts in ideology and political power. The premise of a fact check is that objective reality must not be distorted. For the integrity of such a regime to hold across time, it must be kept transparent and open to scrutiny. In case of a conflict of interest, as in the Centre judging coverage critical of itself, autonomy for the fact-checker would be a sine qua non. Else, it will fail to institute itself as a regulatory system we could all agree upon as a bulwark against a harmful infodemic of falsehoods. Meanwhile, the rule’s basic validity also needs to be tested by the judiciary in the light of our right to free speech. The Constitution must prevail.
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