Facts and fakes online: Who decides?

Government efforts to set up fact check units are being seen as attempts to control the narrative and quash dissent

On the face of it, a government-sponsored fact check unit for social media seems harmless. Especially when such a fact-checking unit is only concerned with “the business of the government”. But the 2023 Amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, (the Intermediary Rules) went further. This Amendment told social media companies that whenever the Union Government’s fact check unit (FCU) declared a user-created post as “fake”, “false” or “misleading”, the social media company had to delete it, no questions asked. If they failed to do so, the social media company would be held legally responsible for the post. 

When comedian Kunal Kamra challenged this Amendment in the Bombay High Court as being a violation of his right to free speech, it was struck down as being unconstitutional, by a majority of two to one. This is, perhaps, one of the most important judgements on free speech in India and worth better understanding.

The Bombay HC judgement in Kunal Kamra’s case builds on the Supreme Court of India’s judgement in Shreya Singhal v Union of India (2015), where the notorious Section 66A of the Information Technology Act, 2000, was declared unconstitutional. The SC struck down Section 66A for the reason that jailing people for views which could be “annoying”, “inconvenient” or even “offensive” was against the fundamental right to free speech guaranteed under Article 19(1)(a). Even if speech online had to be restricted, it had to be done only for specific reasons permitted by the Constitution, and in a manner that was not too broad — something that Section 66A, with its vague and unclear terminology, failed to ensure. 

Beyond striking down Section 66A, the Shreya Singhal judgement also deepened what freedom of speech means under the Constitution, drawing from US jurisprudence on free speech. Free speech in a democracy enables citizens to exchange ideas, even unpopular ones, in order to ensure meaningful governance. Free speech is linked fundamentally to how well a democracy functions. Therefore, laws need not specifically ban certain kinds of speech to be unconstitutional — it is enough if such laws force people to self-censor and worry about the consequences of speech, hindering the existence of a “marketplace of ideas”. This self-censorship, or “chilling effect”, is enough to render laws such as Section 66A unconstitutional. 

In Kunal Kamra’s case, the Bombay HC was faced with a different kind of law. There were no immediate penal consequences to someone who posted “fake” news about government business.

Rather, the consequence was on the intermediary — the social media company — if it failed to remove the post. If the person who created the post was not directly affected, how then was such a law restricting free speech? 

Though there was no immediate criminal or civil consequence, the Bombay HC pointed out that such a law hindered the “marketplace of ideas”. Here, the court noted that the social media company was required to do the government’s bidding and remove any post marked as “fake”. Social media companies had no incentive to disagree with the government, effectively resulting in the erasure of anything the government deemed fake.

The end result would be that views the government disagreed with would be removed, and a free marketplace for ideas would not exist. Where certain ideas are more likely to be censored or taken down, users on social media would not just self-censor themselves, but may not even come across ideas the government deems unacceptable. This also brings us to the other reason why the HC held the 2023 Amendment unconstitutional.

The 2023 Amendment, according to the High Court, also violated Article 14 of the Constitution in two distinct ways — one, it privileged certain kinds of information over others without any real distinction, and two, it made the government a judge in its own cause when it came to social media posts about “business of the government”. 

Though social media companies had to make “reasonable efforts” to deal with fake or false information generally, when it came to “business of the government”, they had to take down the post once the government FCU deemed it to be fake. The Bombay HC found this distinction between kinds of misinformation meaningless, pointing out that it artificially privileged one kind of information over the other. As Justice Patel (G S Patel) memorably put it, “I see no reason why deepfakes about the Central Government should enjoy any greater protection than deepfakes about film actors or cricket stars.”

The HC was also troubled by the fact that the government’s word on matters related to the “business of the government” would be considered final. It effectively meant that the government would decide what the “truth” would be about government business and what could be allowed to circulate on social media. Bizarrely, the same information, in print or television would be allowed to circulate, but only the social media aspect would be taken down. This — the idea that the government would be the final arbiter of “truth” about itself — strikes at the heart of the Constitution’s guarantee of equal protection of law.

Readers of George Orwell know very well the role of the Ministry of Truth in the novel, 1984. Far from combating misinformation, its job was to peddle lies that would suit the ruling regime’s propaganda. Even though 1984 is fiction, totalitarian regimes have had their own versions of the ‘Ministry of Truth’ to convince the population of their infallibility. In the Soviet Union, political enemies of Stalin were not just physically eliminated, but their existence was erased from photographic records. China’s internet censors still scour social media removing any and all references to the Tiananmen Square massacre of 1989. These real-world examples highlight the dangers of making the government, any government, the ultimate arbiter of truth and the Bombay HC has wisely struck down the FCU to prevent such an eventuality.

Clumsy attempts

The FCU introduced in the 2023 Amendment was only the latest in a long line of clumsy attempts on the part of the Indian government to regulate free speech on the internet. Each time, the government has tried to argue that the internet is so different a medium that content on it should be regulated differently from offline media. Each time, courts have rejected this justification and pointed to the Constitution, which makes no distinction between media when it comes to free speech. 

That said, all is not hunky dory with social media. Indian internet users are stuck in an unhappy status quo. Problems with deepfakes, hate speech, and disinformation continue to plague social media. Algorithms optimised for engagement push us deeper into echo chambers and allow bad faith actors much greater reach than they deserve. 

Yet, governments seem to focus instead on measures to stifle dissenting voices on the internet. One can only hope that the Union Government takes the right message from the Bombay HC judgement and moves on to address the real problems on social media by striking a more sensible balance between free speech and online safety.  

I see no reason why deepfakes about the Central Government should enjoy any greater protection than deepfakes about film actors or cricket stars...

Justice G S Patel of the Bombay High Court on striking down the 2023 IT Rules Amendment that would establish a fact check unit

(Alok Prasanna Kumar is a co-founder of the Vidhi Centre for Legal Policy. Navami Krishnamurthy, Research Fellow at Vidhi, provided research inputs for this article. Views expressed are personal)