A censuring move?

Despite fervent criticism from the Editors Guild of India (EGI), DigiPub, News Broadcasters & Digital Association (NBDA) etc. at the time of its proposal in January this year, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, got amended by the Ministry of Electronics and Information Technology on Thursday last week. Apart from these highly reputed and credible organisations, many independent journalists and experts, too, had cast their reservations against the amendment, but to no avail. Ironically, the government claims to have consulted with stakeholders before passing the amendment. If organisations like EGI and Internet Freedom Federation are still opposed to the amended rules, then it is difficult to figure out what consultations did the government make, and with whom! Immediately after the amendment was proposed, the EGI asserted that the “determination of fake news cannot be in the sole hands of the government and will result in the censorship of the press”. The guild has by and large maintained its position to date. The amendment in the rules empowers the Central government to designate an official fact checker for misinformation and ‘fake news’. In the initial draft, the designated entity was the Press Information Bureau (PIB). Since PIB is a publicity wing of the government and doesn’t have a very credible record in fact-checking, the move came under severe criticism. The government has now backtracked on this front and clarified that “the rules do not at all suggest that it's going to be PIB Fact Check…The rules that were notified yesterday (Thursday) do not mention PIB Fact Check." This clarification, however, does not address the key problem at hand. The EGI, at the beginning itself, had denounced such distinction by saying that the amended rules will “make it easier to muzzle the free press and will give sweeping powers to the PIB, or ‘any other agency authorised by the Central government for fact checking’”. Be it PIB or any other organisation, as long as it is working under the ambit or influence of the government, the overreaching powers will amount to censorship rather than regulation. The government’s argument that the new rules are meant to govern the social media intermediaries — rather than journalists and content creators — is heavily flawed and superficial. It is as clear as daylight that the content that could be removed on account of being fake or ‘misleading’ would be an expression of individual ideas and views. It will be an immature take to technically follow the law in letter while essentially undermining its spirit. The quality of governance is incumbent not upon the mere reiteration of what is written in the rulebook but on a sensible understanding of the same while also avoiding the temptation to sidestep. A government official is learnt to have confirmed that the government is “yet to take a decision on whether it will be a new organization that has trust and credibility associated with it” or an old organisation that can be repurposed “to build trust and credibility in terms of a fact-checking mission.” This is indeed a big decision to make. As long as certainty eludes this front, the entire legislation will lay in the realm of ambiguity. Again, this is not a single ambiguity associated with the new rules. The definition of ‘misleading’ information could be very broad-based, leaving a vast grey area where the government may have overt control to define things in its own way. The amended rules may directly or indirectly impose the government's will on social media intermediaries. These are global profit-driven conglomerates that, in most cases, tend to avoid legal conflict. It should not come as a surprise if they agree to comply with the norms set by the government in letter and spirit without much resistance, for they know what the losing of ‘safe harbour’ could mean for them! Misinformation is indeed a massive problem that requires an urgent solution. The new amendments, however, may not be the right way to go forward. The government must ensure a facilitating ambience for independent fact-checkers who are already doing phenomenal work in this direction.