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It all started in January this year, when, out of the blue, a completely new and unrelated clause was added as a postscript to the draft online gaming rules. The clause proposed that the Centres Press Information Bureau can flag and instruct online intermediaries if a piece of information online relating to the government was deemed as fake. Intermediaries would then have to act and take it down.

On Thursday, that proposal was notified by the Ministry of Electronics and IT. Though the reference to the PIB was removed in the final rules, with the government saying it will notify a fact-check unit, the spirit of the legislation remained the same.

As a consequence, online intermediaries social media platforms like Facebook, YouTube and internet service providers like Airtel and Jio will be faced to make a key decision: whether to abide by the government fact-check units version of the truth and take down any content the unit labels as fake, or decide not to take the content down and risk facing litigation.

While the government is billing it as an important measure to curb some amount of misinformation on the Internet, critics are calling it a tool to widen the scope of online censorship in the country, asking the Centre to withdraw them.

Experts believe that the rules could potentially impact a range of stakeholders, including opposition political parties and journalists. Unsurprisingly, the Congress and several other Opposition parties, including the TMC, RJD and CPI(M), have come down heavily on the government over its decision. So have digital rights activists and press associations like the Editors Guild of India, which has called the rules draconian.

Studies have shown that misinformation is a big issue on every major social media platform. In many cases, it is the content that most often goes viral on these sites, thanks to their own algorithms, and users with varying motivations who share such information. But, these platforms have also become an important tool for people particularly from marginalised groups to exercise their right to free speech.

Minister of State for Electronics and IT Rajeev Chandrasekhar has assured that the government-backed fact check body will work in a credible way, in a bid to address the concerns. When we notify the agency, we will certainly be very clear that any doubts in the mind of people that the power will be misused on behalf of the government will be addressed when we notify the agency. There will be a list of dos and donts that it will have to adhere to, he earlier told The Indian Express.

Unfortunately, there is a high probability that this will be used to suppress free speech and stifle criticism of the Union government, and its policies. This may happen today, tomorrow, or ten years in the future, but once there are rules/laws which can be misused, selectively enforced, they will, Prateek Waghre, policy director at the Internet Freedom Foundation told The Indian Express.

The issue at hand is complex. To break it down, it is first important to understand what these rules are not: these fresh amendments do not give the Centre direct powers to order content takedowns. It already enjoys that authority and exercises it frequently under Section 69 (A) of the IT Act, 2000.

However, what the rules say is that intermediaries will have to make reasonable efforts to not host content that will be marked as fake or false or misleading by the governments to-be-notified fact-check unit if they wish to retain their safe harbour, which is legal immunity from third-party content.

The question that arises then is if social media companies will exercise their agency to decide whether they should let a piece of content labelled fake by the government on their platform. If they do, they could lose safe harbour and attract a lawsuit; and if they dont, they will become party to a censorship exercise.

In plain English, it means that if they choose to continue hosting the content despite it being labelled as misleading, they will lose their safe harbour, which would open an option for the government to take them to court, an option that was previously unavailable. Digital rights experts believe that social media companies will err on the side of caution.

Namrata Maheshwari, Asia Pacific policy counsel for the global rights body Access Now said that if platforms have to make the choice between removing content flagged by the government, and being taken to court, they are most likely to choose the former. Litigation, and potentially several cases in multiple courts, would simply be too resource-intensive and high-risk. For its part, the government has tried to circumvent the concerns by saying that the fact-check body will follow a list of d0s and donts and adhere to standards of fact-checking. The standards, however, are currently not known.

There is also a concern around the government changing course on different provisions in the same law. Earlier this year, it established three committees that would hear appeals filed by users of social media companies if they feel that their grievances have not been satisfactorily dealt with by the companies officials.

The idea here was that not everyone might have the option to go to court to challenge content moderation decisions taken by platforms, and hence there needs to be a forum which can offer an additional avenue of recourse to users. But the new rules point to a dichotomy. For government-branded misleading content that has been taken down by a platform, the entity or person who posted it will have no option but to go to court should she decide to appeal the result. There is no in-between.

If a court challenge is the only recourse available to aggrieved parties, then the net result of this amendment is that it has given the government a shortcut to take content down, while increasing the burden on potentially aggrieved parties, Waghre said.

The overarching question around the new rules is if the government should, and can, be the judge, jury and executioner. The governments argument is that since the rules concern misinformation around businesses of the Centre, it is the most well placed to take a call on content that relates to it, since only it has the right data to prove its case.

Critics have, however, pointed to a potential conflict of interest that might arise when a government-appointed body has the final say in information directly related to the government. The independence of the body had been called into question.

for a fact-checking setup to be credible, it must be independent, possess the necessary capacity (technical, journalistic, etc.) to verify information, have an established track-record, and most importantly, not have a conflict of interest about the accuracy of the content it is supposed to vet, Waghre said.

The claim that only the government has the data to prove whether information about it is true or false reflects the need for it to be more open, transparent, objective in its own assessments about its performance so that these determinations can be made independently, he added.

Read more:
Govt says fact-check body to curb misinformation, critics allege censorship - The Indian Express