Amid vehement opposition from media organisations, and following a flawed public consultation process, on April 6, 2023, India’s federal IT ministry amended Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (2023 Amendment). The amended provision expands the Indian Government’s censorship powers by obligating all intermediaries – including social media companies and internet service providers – to make reasonable efforts to disable the sharing of any information about the Indian government deemed “false”, “fake” or “misleading” by a fact check unit composed of IT ministry officials.
The 2023 Amendment evidently limits the freedom of expression guaranteed under Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR). As a ratifying party, India is obligated to ensure that restrictions imposed upon this human right satisfy the stringent three-part test of legality, legitimacy and necessity established by Article 19(3). The 2023 Amendment falls short for the reasons stated below.
The legality prong requires speech restrictions to be “provided by law”. The United Nations Human Rights Committee has clarified that for a norm to be considered ‘law’ it must: (i) be tailored with sufficient precision; (ii) provide adequate guidance to those charged with its execution; and (iii) not confer unfettered discretion. The 2023 Amendment meets none of these criteria.
Firstly, the terms “false,” “fake” and “misleading,” in the 2023 Amendment are imprecise and broad enough to permit the targeting of both harmful disinformation (like fabricated content) as well as legitimate expression (like satire and parody). The absence of specific definitions of these terms in the amendment worsens its imprecision. Secondly, the amendment does not guide the fact check unit on the circumstances under which it is required to flag content for removal by intermediaries, which can lead to arbitrary decision-making. Lastly, the discretionary censorial power conferred upon the fact check unit is largely unchecked since its exercise is not subject to any procedural safeguards, including – notice to publishers, pre-decisional hearings, and a statutory mechanism to contest the unit’s speech determinations.
Limitations on free expression must serve the legitimate aims catalogued under Article 19(3) ICCPR: respecting the rights and reputations of others and protecting national security, public order, public health, or morals. This list is considered to be exclusive, hence speech restrictions which do not cater to at least one of these aims are impermissible.
The 2023 Amendment outlaws content simply for being untrue, even though the prohibition of false information by itself is not a legitimate aim. Indeed, the Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda, regards curtailments on the circulation of information for vague reasons like “false news”, as incompatible with international standards for restrictions on free expression. It is argued that since a proximate and rational nexus with a recognised legitimate aim is not discernible either from the 2023 Amendment’s text, or from the ministerial notification introducing it, the amendment fails the legitimacy requirement.
Finally, restrictions on free expression must be necessary for achieving a legitimate aim. Fulfilment of the necessity standard requires a proportionality assessment: restrictive measures must be the most appropriate and least intrusive means of carrying out their protective function.
The lack of a traceable connection between the 2023 Amendment and a legitimate aim under the ICCPR (as argued above), precludes a meaningful proportionality analysis. Even assuming the 2023 Amendment is intended to serve a legitimate aim, its overbreadth renders it disproportionate. The value placed upon uninhibited expression under the ICCPR is particularly high in circumstances of public debate concerning figures in the public and political domain. By authorising the Government to determine the falsity of online content, the 2023 Amendment creates perverse incentives to stifle dissenting or minority opinions on political issues and valid criticism of governmental institutions.
Blunt regulatory instruments like the 2023 Amendment risk chilling free speech. As the Indian Government gears up to revamp the regulatory architecture governing internet services, it is advised to steer clear of such heavy-handed solutions to complex content moderation problems. Instead of compelling online platforms to take steps to remove protected speech under international human rights law, the Indian Government should consider countering misinformation by enhancing its own transparency through the publication of official data on policy matters; promoting digital literacy; and reinforcing its commitment to press freedom, diversity, and independence.
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