Fact-checking or Censorship by Other Means?
The Government Cannot Claim Monopoly Over Truth in a Democracy
Published in The EPW
Public opinion is the currency of democracy. As public discourse has increasingly shifted online - with online platforms setting the agenda for even traditional news media - governments around the world are grappling with how best to regulate the online sphere. Some of the initiatives are well-intentioned, aimed at establishing accountability for digital platforms which are encouraging information disorder to boost their own engagement and thus profits. However, the series of moves by the BJP-led Government of India are indicative of not a good-faith attempt at public-interest regulation but instead betray an anxiety to control the digital public sphere. The latest is MEITY’s (Ministry of Electronics and Information Technology) proposed amendment to the to the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which states that online intermediaries must takedown any information identified as “false” or “misleading” by the government agency, Press Information Bureau or “other agency authorised by the Central Government for fact checking or, in respect of any business of the Central Government, by its department in which such business is transacted under the rules of business made under clause (3) of article 77 of the Constitution”.
A number of technical and procedural deficiencies are obvious. First this amendment was inserted as a postscript to rules on online gaming even though it has nothing to do with gaming but is instead about policing the entire online information ecosystem. Second, the Press Information Bureau has no regulatory or oversight powers and thus it cannot exercise veto power over what independent media publish in the name of “fact-checks”. In fact, PIB’s stated purpose is to be the Government's mouthpiece and “disseminate information to the print and electronic media on government policies, programmes, initiatives and achievements”. The inherent contradiction between the role of the media as a watchdog and PIB as Government’s primary spokesperson makes it wholly unsuitable to play any kind of an oversight role over media or other online intermediaries. Finally, the PIB has shown itself to be incompetent to be the country’s official fact-checker on two counts: the failure to detail the process followed for its fact-checking judgments and reports in multiple outlets of its shoddy fact-checking, some of which had to be contradicted and corrected by other arms of the Government itself.
Comprehensive as these deficiencies are, it would be a mistake to get lost in these details. The central issue is not whether PIB has regulatory powers over media or the competence to conduct quality fact-checks but whether the Government can claim monopoly over the truth - or even public interest - in a democracy. The central premise of democracy is that the Government must not only periodically earn the mandate to govern but that this mandate must constantly be justified. This is why not only are there periodic elections in all democracies but why all democracies have some version of a no-confidence or impeachment motion to remove the Executive authority in question even before completion of term. This democratic premise has multiple implications: first, the Executive mandate does not confer upon the Government the right to have the last word since the mandate must continually be justified and renewed; second, in seeking renewal of its mandate, the Government itself becomes an interested party and thus cannot sit in judgment of its own performance. Third, there are other stakeholders equally vested in public interest and ascertaining the truth. A framework for governance of online speech which would make the Government the sole arbiter of truth - even if it did not suffer from the procedural infirmities of the current proposal - vitiates against this fundamental democratic premise. It is thus evident that the attempt to force the Government’s point of view to the exclusion of other views is not misguided regulation but an attempt at censorship.
The BJP-led Central Government has in fact moved to consolidate control over the online discourse over the last few years. There have been a series of ad-hoc amendments to the IT Rules, which have centralised power in the Executive giving it ultimate authority to determine what can be said online. These include misusing Executive authority to expand the scope of regulation under the IT Act (by amending rules instead of the legislation itself) to bring online news media under its ambit. This has dramatically increased Government control over online news media through the imposition of a vague and overbroad “Code of Ethics” on online news media along with three-tier Grievance Redress Committees, the final tier of which is adjudicated by Government nominees. Moreover, the Government already routinely issued secret takedown orders for online content to platforms bypassing individuals’ right to be heard and in violation of principles of natural justice. While there was minimal pushback from social media platforms to begin with, the newly included provision of criminal liability for platform employees for “non-compliance” has further consolidated control over platforms for such takedown requests. These takedown requests include not just issues of national interest but also content critical of the Government and its functionaries such as over 50 tweets from members of the Opposition and civil society which linked to the BBC documentary critical of the Prime Minister’s role during the Gujarat riots. Finally, the Government has constituted three Grievance Appellate Committees chaired by government functionaries under the Ministry of Home Affairs, Ministry of Information and Broadcasting and Ministry of Electronics and IT respectively. As per MEITY MoS Rajeev Chandrashekhar, the Committees will adjudicate on “rights of users [vis-a-vis the platforms] including the right to free speech”. While, Government takedown requests ensure the blocking of content critical of the Government, these appellate committees will provide an institutional framework for Government-linked individuals to reinstate content taken down by social media platforms for violation of their content moderation policies. The Government has thus set up a comprehensive architecture to dictate content moderation decisions taken by social media platforms and the online information ecosystem.
In light of the widespread pushback against the proposal to notify the PIB as India’s official fact-checking agency to police fake news on online platforms, the MoS equivocated saying that the Government was open to the idea of a self-regulatory body that can certify “trusted” fact-checkers to identify online misinformation and was not trying to “retrofit a particular organisation” into the process. Models of fact-checking already exist including the “International Fact-Checking Network'' which is accepted by major social media platforms and has certified more than 100 organizations around the world for fact-checking on the basis of their adherence to their publicly available “Code of Principles”. Other models include providing additional context through user feedback such as “Community Notes” by Twitter. It is thus unclear why the Government would feel the need to notify its own mouthpiece to police “fake news” online. In any case, the central FACT of democracy is that the Government can neither declare itself to be the sole repository of truth nor arrogate the right to notify an institution as the sole arbiter of truth.
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