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    Fact-Check Unit hearing: Petitioners argue The Rule Could Silence Digital Voices

    “We have two paths we can choose. We can either choose to uphold this Rule as Justice Gokhale has done, or we can choose to strike it down… If you strike down the Rule, nothing is lost because the government has got the blocking at the service. The government can always complain under the impugned rules and any fake, false information can be dealt with. But if [the] Rule [is upheld], then by one step, an unidentified, unknown body, which is completely at the whims and fancy of the Central Government, you can have a fact check unit and put an end to any information. You can simply label it as misleading and stop the information from being circulated. That is the most dangerous concept,” said Arvind Datar, senior advocate appearing for the Intervenor, News Broadcasters and Digital Association, in the Fact-Check Unit (FCU) hearing, while concluding his submissions before the third referral judge, Justice A S Chandurkar at the Bombay High Court.

    Following week-long submissions, senior advocate Navroz Seervai appearing on behalf of Kunal Kamra, Advocate Shadan Farasat appearing on behalf of the Editors Guild of India (EGI), Advocate Gautam Bhatia appearing for the Association of Indian Magazines, and Datar, made their submissions before the court. During these hearings, petitioners focused on the impact of the Rule on journalism and online publications and India’s democratic system.

    Rule’s impact on online publications

    Duality of regime for print vs digital: The EGI claimed that the Rule impacted their right to circulation under Article 19(1)(g) by forcing publications to remove content deemed fake by the government. Furthermore, Farasat said that the rule creates a duality in this regard by only forcing digital publications to remove the content even if the same information is carried by print publications.

    “[Suppose] I have a circulation, say the normal newspaper circulation, and I have a circulation on digital platforms. Now this [Rule] impacts only my digital platform… in the print version, the newspapers which we read every morning, this has no application. So, whatever is fake, false, misleading, continues to be in that. If it is so fake, so false, so misleading how can it be there in the print but in the digital medium, it will have to be effectively removed by the intermediary?” asked Farasat.

    Further, he said the duality in this regime contradicts the government’s stand that the rule seeks to remove false news from society. He said, “If it is so problematic, why have you restricted only the digital media? …The real reason why they have done this is that the manner in which news is consumed in 2023 and 2024 is very different from how news was primarily consumed earlier… now the pattern is that large chunk of news is consumed only on the phone. So, what you do is if you can block that space, reduce from that space … the government’s version has the loudest megaphone. Because circulation of news today in 2024 happens primarily, not exclusively, but primarily substantially through the digital media.”

    Datar went on to say this duality also violates Article 14 because information in print cannot be identified by any fact-check but the same information in digital media can be identified and then blocked overnight.

    Rule restricts public discussion of government business: The EGI argued that restricting the Rule to the Central Government’s business does not satisfy the limiting principle. Farasat explained this by saying that democratic self-government is practised when the truth is arrived at through the exercise of Article 19(1)(a), not by a good government telling the citizens what to believe as the truth.

    “There is no truth or falsehood in the business of the government. There is no truth or falsehood in the business of the government except through exercise of 19(1)(a). The state can’t tell me this is the truth and this is irrespective of 19(1)(a). So to arrive at falsehood or truth 19(1)(a) exercise is essential,” he said.

    Petitioners thus argued that the Rule hinders the people from discussing whether a fact so-determined by the government of the day about its own business is correct. In the case of journalistic publications, Farasat said, “We report. We said this requires public examination and then somebody will investigate it. The government can just come out and say, sorry, there is no corruption in this contract. It was completely clean. This is false. This piece which alleges quid pro quo is false. Out it goes. Can in a democracy, this rule survive? And this is after its reduction after trying to make it survivable. Even then, look at the capture of this rule.”

    Rule’s impact on free speech online

    Rule attacks the core of Article 19: Farasat said that the primary purpose of the right to free speech in our constitution is to protect people from and allow them to say something against the state.

    “That’s the core of 19(1)(a). The 19(1)(a) protection is against the state and it’s functioning. That’s the whole idea of free speech. Earlier, the state, the monarchy, the ruler as it be, would suppress speech of the public against its functioning. That was the origin and that is exactly where this rule sits. So my respectful submission is [the Rule] attacks the core. And since it attacks the core, irrespective of how you try to limit it, which is solicited right before the division bench, it will still have a large portion within it which will be problematic,” said Farasat.

    He argued that a democratic self-government entails protection of speech against the government’s functioning and the business of the Central Government.

    Why should the government get to decide what is high value speech? While talking about free speech, Bhatia said that there is a two-tier structure to speech with some speeches being low-value and others being high-value. He said that this structure removes the discretion of excluding any kind of speech simply because it’s fake. Referring to the Shreya Singhal judgement, Bhatia said this is done to ensure that the government does not get the discretion to determine what constitutes high value or low value speech. Even if this may be intuitive in cases of fake news, Bhatia pointed out that there will be a range of situations again where such an option to the state would be undesirable.

    “For example, in the first 20 years of our jurisprudence, commercial speech was given no protection. In Tata press, the court said that actually in a market economy you do have to give protection to commercial speech. So given that that subjectivity which lies in that determination, the very nature of a two-tiered free speech clause means that if you want to reasonably restrict speech, then the only way as the state of doing that is to trace it back to 19(2) sub-clauses. If you can’t do that, then the law must fail. The argument cannot be that the speech is not even protected in the first place,” said Bhatia.

    No definition of what constitutes as fact: Petitioners argued that it is not possible to determine objective facts and fake or false information since truth is a facet that even court judges struggle to determine. Farasat and Bhatia pointed out in their submissions that even numbers and mathematical truths that are considered the most objectively basic facts can be disputed.

    “Numbers are the most factual. We can’t imagine anything more than numbers. And numbers are always disputed. Economic growth, unemployment, illiteracy, electrification, numbers are the most factual and they are always disputed. There are always two versions, i.e., information cannot be read down in this manner only for this sub-rule,” said Farasat.

    Further, Bhatia pointed out that certain information like opinion that is more subjective and cannot be determined as true or false.

    “I believe that X writer should win the Nobel Prize. It’s obviously an opinion and that cannot be subject to fake or false determination. My submission is that there is a very large area, which is not trivial, but it’s a very large area of statements that cannot be classified as either true or false,” said Bhatia.

    On the other hand, Datar said that while it may be possible to decide the truth of certain information like the number of deaths in a railway accident, he stressed that the danger with the Rule is the word “misleading.”

    “What is misleading? Today, the government claims GDP is growing at seven percent. I will say no, the government’s claim is false, the growth only three percent. They can say it’s misleading. Don’t publish that news. So, what is misleading, fake or false is a matter to be decided,” said Datar adding that giving this power to define “fake,” false” and “misleading” to a single unit is violative of the separation of power. “It cannot be done by the Executive. It has to be done, I don’t say a court, but it has to be done by some quasi-judicial authority which has been invested with certain powers,” he said.

    Rule’s impact on a democratic state system

    Rule destroys democracy: Farasat argued that the Rule comes at untimely moment when India is in the election cycle. He said the Rule impinges on the people’s ability to make determinations on the business of the government since it allows the government to decide what is false and what is truth.

    “I’m not using the word “destroy” lightly… PIB… will give government’s version no difficulty. That’s why we are there as journalists. There’s a government’s version, there’s another version, public decides which version is correct. That’s the whole purpose. PIB will defend the government to whatever of extent. Let them defend no difficulty. But that has to be only one of the multiple views… this matter is not really about the false, fake news. There are ways to deal with it. You can have an independent authority like the Press Council of India, statutory body, independently appointed through proper process, ete. Something can be done… but that’s not what this case is about. And when the government determines [fake news] in this manner, it appends 19(1)(a),” he said.

    Rule hinders India’s federal system: The power to decide what is fake and what is real being solely in the hands of the central FCU affects India’s federal system as well since the views of the Central Government may differ from that of the state governments.

    “The Central Government can say “no, this state version which you have carried out of, the state of say Bihar or Maharashtra, is incorrect. Remove it. It’s false. The point I’m trying to make is that [the Rule] is extremely broad. It attacks the core of functioning of a democracy,” said Farasat.

    Rule’s impact on the functioning of intermediaries

    Rule takes away, alters the mandate of reasonable efforts: Petitioners said that while earlier amendments to the IT Act called for “reasonable efforts” by intermediaries, the current Rule as it stands now, changes the meaning of this requirement.

    “Once the government determines [what is fake or misleading information] through the inserted amendment, where is the question of reasonable efforts? Once the government determines you have to remove. What is the reasonable effort? [An intermediary would] have to be technologically incompetent not to remove… So much reasonable efforts is in the context of a determining regime. But when you have a determined material inserted through the amendment that is identified by the government, then reasonable efforts only can mean one thing. I have to remove, otherwise I lose my safe harbor. So, as they can’t be, the government can’t play with reasonable efforts in this context, having identified it,” said Farasat.

    Rule fails to satisfy Section 69A requirements: Datar argued that the present amendment for the FCU cannot be traced to Section 69A because no procedure, safeguard is prescribed when calling to remove/ block information from the public.

    “What is the blocking rule? There’s a set of information the Central Government feels… should not be made to the public. It can do [so] through the blocking rules. So, the point I’m going to raise is the only route to block access is via section 69A subject to the safeguards therein and which has been done by the blocking rules. Once there is a procedure to block access of information to the public… What is the procedure to be followed? What are the built-in safeguards? Only when you satisfy that you will come under 69A,” said Datar, adding that the FCU should have come with relevant Rules within the Act with a short title, definitions.

    Why is factcheck PIB community notes not enough? Bhatia states that there already exist measures such as the PIB Fact Check Bureau at the government-level as well as features like Community Notes of X microblogging platform to fact-check information. The feature fact checks tweets, and then adds a factual counter to the content below the post. Bhatia asks asks why such measures are deemed insufficient.

    “The burden of showing, once the petitioners show that alternatives [to the FCU] exist, that they were not even considered by the government must lie upon the state… And the state [also] bears the burden of showing why those options are not sufficient because they restrict rights to a lesser degree,” said Bhatia.

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    The post Fact-Check Unit hearing: Petitioners argue The Rule Could Silence Digital Voices appeared first on MediaNama.

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