Fact Check: India Supreme Court Stay on PIB Fact Check Unit - Free Speech Analysis

hello everyone and welcome to Media Nama the Supreme Court of India on March 21 put a stay order on the fact check unit

notification that was issued by the ministry of electronics and information technology uh which was basically going

to create go ahead with the creation of the factur unit under the Press information Bureau now um for those of

you who haven't been following this story for a while let me just give you a quick breakdown of what has happened so

far far in this year so on January 31st the two judge bench from the Bombay High Court gave a split verdict where uh

justice Nila gole spoke um in favor of the rule for the formation of a captured unit while uh justice GS pel spoke in

favor of the petitioners um following that on March 11 uh basically what happened was that

the judges decided Ed to send this case to a third referal judge to give a third opinion which would then help get a

majority view on what decision needs to be made over here and on March 11 justice as Chandra chandurkar gave the

comment that a stay on the formation of the fact Che unit is not required and based on that the two judge bench also

decided that uh with a majority view they will be rejecting the stay order on the factur unit and in line with this on

March 20 Mighty notified the FCU under the Press information Bureau on March 20th now as I told you the Supreme Court

after hearing a plea by uh the original petitioners Kunal kamra and the editor Guild of India uh decided that a stay

order is in fact required on this fact so basically what this means right now is that until April 15 which which

is when the next hearing by CH Justice chandurkar is expected to take place until that date the stay order on the

FCU will continue now what does this mean in terms of free speech in India we will now be discussing with our founder

uh nikil babwa so nikil hi thanks for joining us nikil how do you interpret the stay

order on the mighty notification of the fact check unit so the so the stay on the formation

of the fact check unit is actually very welcome from the Supreme Court I I only wish they acted sooner on this issue uh

because this is amongst many the Constitutional matters that need to be taken up um you know I was very worried

when the third about the third judge's ruling and uh the refusal to stay the formation of the fact check unit uh at

the high court level because once something like a fact check unit is set up it's very difficult to roll back we

saw this with ad right so the Supreme Court took over over 700 days to even hear the right to privacy case in uh in

that instance um and you know uh or to form the to form the the nine judge bench um and then by then the

penetration of Adar in the country had gone up from around 60 odd per I think 63 64% to above 90% And once resources

have been allocated people are appointed people are on board it's difficult to roll back something like this um the

fact check amendment by itself is a serious threat to freedom of expression because it gives the Indian government

um Power on social media over social media to direct social media platforms to censor any news uh that is uh that

has been fact checked by the fact check Comm so now whether it is factually correct or not and you know this is

something that we've seen with the way um the Press information bureau's fact check unit had been operating for a

while and that's the one that was being designated uh as a fact check unit uh it seemed very political in nature in terms

of what it was fact checking um and you know if you can't really uh uh give the government the power to censor content

on itself um especially when there are news organizations that are critiquing it in that context let's not forget that

the you know the first uh of the it rules amendments uh in 2021 basically brought digital news

organizations under the Ambit of the it and they gave the information and broadcasting Ministry the power to

regulate them um and in that regulation uh basically what had happened was the government had expanded

the scope of section 69a which are the secret blocking powers to disal news organizations

now M multiple news organizations went to go to challenge those rules um and got a stay order so

effectively you can still you the government doesn't have the power to direct u under 69a they don't have the

power to direct uh news compy news Publishers to delete stories uh but and because this was

stay which is why is my reasoning they try to create this fact check unit because that would apply directly to uh

social media platforms and other intermediaries where they can direct intermed to censor content online and

for news organizations most discovery of news happens through search and social so it has the same impact of uh of

censorship uh because uh social media platforms are essentially distribution for news organizations so it's censoring

the the the spread of the news not the news itself but it has the same impact that people don't read it so um I think

you know in this country TV and print are declining and mostly people read the web um so this is uh the the the factor

amendment was brought in to bypass uh you know that staying of section 69a uh censorship Powers um again like I

said earlier the one one of the big problems with this fact amendment is that it basically makes the government

the S Arbiter of Truth um in relation to any business relating to itself um and and so you know it makes it the

gatekeeper essentially uh on the internet that you can't uh let's say uh if there is if you're critiquing the

calculation of GDP or if you're pointing out how why the how the government uh may have Mis preted its own data which

it does quite often um and and and if you're highlighting those things as a news organization then you would uh the

government would have the right to censor you uh so U you know especially when we're going to elections it's very

very important uh to to prevent the creation of such a fact check unit and I'm quite if you look at the speed with

which the government set it up uh because and it has the ability to remove from social media news news reports that

could perhaps highlight issues related to the G especially after for example uh there is interpretation of the Electoral

bonds data that's being made on the internet right now right um the uh the other is that you know there is no clear

definition of words like fake or false or misleading uh in law and uh you know

this this basically uh just and also the perpetu of of this

content in terms of the fact that uh if uh if it's censored once can I paste it again and will it have to be censored

again so is there like uh our social media platforms expected to continue censoring re-sharing of news articles on

social media and where is the ability for them to do that on a repe bis right so it leads to in a sense Shadow Banning

or prevention or distribution of critique of the government especially close to elections

um the other thing is the impact on safe har so uh digital platforms currently enjoy uh Safe Harbor from liability for

user generated content which means that if you and I post something on social media uh we're not held liable for what

the platform is not liable for what we post and this can be taken down by platforms um but that uh or the

platforms can if the platforms don't uh remove it if it is illegal um they uh and after they informed of this this

information being illegal or uh is when they have actual knowledge of it now uh under the Supreme Court verdict uh

actual knowledge means a court order a government order so a fact check unit informing someone uh to take content

down um uh is effectively overriding uh the uh section 79a of the it act um uh and and plat they're saying

that platforms don't necessarily need to take this down as well um but the way you need to look at how this operates is

that the moment a platform will get let's say 100 orders asking them to take down certain content they don't have the

capacity to do they can't challenge it so even if the government says mark this at fake news and don't take it down they

may still have liability over that fake news and so therefore they might take it down and censor it themselves so the

effect is that also that of basic censorship okay so there's this um argument that was made made by the

solicitor general Tushar meta basically when the petitioners were saying that the rule could make a singularity of

Truth online uh maa's argument was that the government is not forcing the intermediaries to take down the content

but rather that after the whole issue goes over and there is an agreed person if that agreed person wants to approach

the court uh against the intermediary then the intermediary cannot hide behind the section 7 Safe Harbor provision so

what is your take on that so look um uh there is clear liability that gets attributed if let's

say um you know uh the intermediate does not take down the content uh and like I said intermediaries will not take a risk

in allowing that content to stay up because they don't want the liability the threat of liability is enough for

most to force most intermediate to take down content um and we seeing this happen uh we've seen this happen in the

past like RAB had done the seminal research work um almost a decade and a half ago uh on almost a decade ago in

fact in on on Safe Harbor and what he found was that just at that time you didn't need a court order government

order to get content taken down you could simply send an email and what we found was that

platforms were unwilling to take on the live so while T the solicitor general may

have argued that there's no compulsion to take down content the threat of liability is enough for them to remove

it um and you know that's the risk that you want to avoid because what happens is every time the fact check unit sends

something and you know there is no uh there is no guideline for transparency accountability of the fact check unit

it's not an independent body frankly I don't think it should exist at all uh because uh you know it just uh it

creates um an Arbiter of troths so to speak that the government runs um and and so uh we really shouldn't actually

be in a situation where safe har is being risked um by a government run body that

basically wants to prevent spread of news or information related to the Govern the government has every right to

counter it they can publish their own counter speech they can publish their version of the truths online um since

interpretations of data and information may vary um but um really their argument the government's argument that they are

in the best position to determine what is true about them um is problematic because we know both from India and from

across the world that governments lie and what it'll happen is that they'll basically end up suppressing the

truth okay so you said that according to you the FCU shouldn't exist at all so just to play The Devil's Advocate um

social media intermediaries have their own Community policies that allow content censorship to some extent so the

government could argue this is the same this is their way of making sure that they get to fact check the truth about

themselves so what would you say to that and social media platforms get criticized when there is censorship of

content on their platform when they sensor certain content classic old case for example of legitimate news being uh

censored was this instance where I think it was a Norwegian prime minister who had

uploaded um the photograph a pit prize winning photograph of a uh naked girl child running um with a nap bomb in

Vietnam uh going off and this is one of the most celebrated photographs published in the newspaper um from the

Vietnam War um and Facebook took it down they censored so they have censored it uh their Community guidelines said that

you know uh putting a photograph of a naked child is not correct um and that's something which we expect that wouldn't

be allowed um but if a newspaper can publish it then why can't and this is an iconic historic photograph why can't it

be published on the platform so look platforms have their own guidelines they have their own ruls these are all tricky

situations uh and that's why Facebook is also constituted something called an oversight board uh which is a space

where where users have the ability to question uh takeown of content uh by

Facebook and there is an independent sort of group of people that adjudicates uh on this on a regular

basis uh I'm not it's I mean it's jokingly called the Supreme Court of Facebook um and I'm not sure whether

that's the right approach what is the right approach uh but I think Facebook doesn't even need to do this because

there is no clear legal requirement to do this but they have it because they want to give the semblance of

fairness uh and they and they also have the right to not abide by the directions of the oversight board as well um but it

allows them to become better at what they do uh because there's a feedback loop that's coming from uh a number of

global experts on these issues right um what so so I um and the other thing is that should

Facebook have the right to sensor content that's on right so they be forced to um uh to abide by let's say

what the what the Indian constitution has in terms of reasonable restrictions on Free Speech uh and say that uh they

don't and that they can't take down content which is inherently legal our conversation today is on um whether the

government can force a takeown of content that they feel is fake but uh should Facebook be preventing from

taking down content which is essentially correct and legal in nature and It's tricky because what's happening

is that platforms like Facebook Twitter um YouTube are very large platforms um that are dominant in their

own right in their own space and so uh and they are essentially the carriers of speace they are they can play they can

be the Arbiter of Truth their algorithms can change the way we view stories and what

to prioritize what not to prioritize there are allegations of Shadow banding um they are essentially private

platforms performing a public function so should they be held to a higher standard like the government of India is

under the constitution of India I don't really have an answer to that question it's a tricky one uh

because at the end of the day they are a private platform it's their playing field if users feel that this that that

you know on this playing field there shouldn't be uh that the platform is not being fair um they leave the platform I

barely used Facebook in the last I don't know 5 years uh barely ever logged in to Facebook uh I prefer Twitter as a

platform so different people will choose and respond in different ways but at the end of the day it is a private platform

governed by their own rules um and I don't see how constitution of India applies to a private platform uh it does

apply to the government of India the reasonable restrictions and Free Speech apply to the citizens of India but

overriding them to quite an extent are the the aspects uh and what is actually primary what takes Primacy is the

guarantee of freedom of speech that article 191 gives us and um the government of India has to respect that

and abide by that which is what um the fact check unit can actually override because let's not forget

um the restriction on false information doesn't is not a reasonable restriction uh under

192 there is what is fake and what is false is not mentioned these definitions are not there um you know so the so what

is the let's say let's take the amendment it say that what is the business of the Govern what what is fake

what is false what is misleading um misleading is very subjective um there are very few

absolute truths in a sense right so so uh what a government can choose to act on uh could also be how someone may have

interpreted something that the government done so I think those restrictions that apply to the

government should apply to the government uh I don't think social media platforms necessarily should be

restricted in terms of forcing them to abide by a country's uh fundamental right to free speech it's their platform

um any user can create a Facebook on the internet uh so I but there is only one Indian government for the citizens of

India so should there be absolute Free Speech online uh I don't think so I mean there

is very clear harmful speech should be regulated it should be restricted uh there are mechanisms available to

restrict that speech it's another thing that globally we are struggling to deal with that speech because of the scale at

which uh harmful speech is being published on the internet uh and that's a battle which I think is impossible to

win to be honest um and so technology is also being evolved to deal with it um but I think it's going to be forever a

losing battle uh um I'm not sure how uh how uh you know I I looked at I thought thought about that absolutist question

uh quite often and there's an old saying that you know um um if uh if my so so the right to offend

is integral to the right to free speech um but no one has a right to illegal speech um and so while legal

speech that offend someone should definitely be allowed uh illegal speech should not and so I don't think there

should be right to Absolute free speech I don't think there should be the right to Illegal speech um our speech as

citizens of India is restricted uh by our Constitution and I think that's where it should be how the Constitution

is interpreted and how legal speech speech is determined legal or illegal is actually determined by

courts uh I don't think that should be left to the government of IND all right fair enough uh coming back

to India how do you see the development so far affect impacting the state fact Che units um unfortunately it doesn't

impact the state fact Che units I don't think state fact check units should exist because just like the central

government should be shouldn't be an Arbiter of Truth um and have the power to get

content taken down the state fact check units shouldn't either um of course I I think the government even though I don't

like it I think the government is free to run their own um media publication so to speak and their own fact checking

Center where they can say that something is false uh but just like they have the right to say that something is false uh

I should have the right to clarify that it isn't false um and uh but they shouldn't be able to censor me is the

point so uh I I I think similarly state fact check units also if they want to present the government's point of view

so go ahead that's the job of a PR department that's the job of pib in the central

government but I don't think they should have the right to censor anyone and so um this entire move to set up P check

units is extremely problematic uh irrespective of whether it's a state government or a central

government that's that's creating this are there any other censorship concerns that you're seeing these

risks uh I am a bit concerned about how SE 69a uh seems to expand in its scope or we don't even know whether it's

expanding in its scope so one of the things that happened on Twitter uh after Elon Musk took over was that they

stopped publishing uh data to chilling effects. Oro as it is it was called the Lumen database it was initially called

steing effects it's now called Lumen database uh Twitter stopped publishing the data there and Twitter one of was

one of the most useful sources for us as journalists to determine what kind of censorship is happening in the country

um and I've been using the Lumen database for quite a long time um and I remember when the farmer protest was

happening and there was this uh tussle between Twitter and the Indian government um we used data in the Lumen

database to figure out that there was a uh there was a member of parliament who had been censored um and we contacted

him and he said and and I think his son was managing his Twitter handle um and his son had no clue that that tweet had

been censored uh and then um uh the that particular MP raised the issue in Parliament about a member of parliament

being censored by the Indian government and we saw uh censorship of tweets extensively there um that were from

media Publications um and the government clearly didn't want news about the

farmer protests to be spreading online uh there is it is believed a great deal of control mainstream media so therefore

protesters have no place to go except the Internet and especially social media and so uh I think we're seeing now uh

it's a black box we don't know what the government is censoring we don't know how the what is who's taking those

decisions how are those decisions being made um if something is taken down there is no page also that indicates that that

this content is being taken down you know in in in Kuwait when a website gets taken down there the government puts up

a page saying this has been taken down on the authority of so and so there there's detail that they provide to a

citizen and there should be an opportunity for the citizen to appeal this against the government as well but

69a orders are basically a black box we don't know uh how this is being done uh we don't know on what basis an order is

an emergency order and most these most of these orders are emergency orders so there is 69a censorship I think is where

the Supreme Court failed Us in the S single case they could have brought in more transparency and

accountability um they seem to feel Justice nariman in his judgment seem to feel that um there are enough safeguards

in place and the government committee is in a position to review these orders even if they are emergency orders and he

and uh we don't know whether those reviews happen and how those reviews happen and whether it's basically the

government just saying yes to a government order Without Really applying their mind um and uh justice nariman had

also written that the person whose content has been censored if identifiable should

obviously be given a uh my understanding is that uh that never happens the platforms get aaring

the platforms get if they don't take that content down so in that sense that's one that's one

problem with SE CNA and how it's being implemented on the internet related to that is uh Twitter's court case which

they lost I think in the Bangalore High Court um related to censorship and that was problematic and I I hope that gets

overturned eventually um because that basically legitimizes this kind of government

censorship uh and I think it's about time that the Supreme Court looked at the it

rules in total because there are multiple cases that are with the high courts uh there is there are few cases

that are in the Supreme Court all of these are linked to the it rules and effectively the it rules are ultrav

virus of the constitution in the sense they create definitions and uh and and enforcement mechanisms under Section 798

of the it act when they can't do that um section 79a defines due diligence requirements and so this it's

problematic how the legal uh how the government is now regulating using advisories and FAQs and it rules which

are not especially when the rules are not not legal um without checks and balances and

people have to go to court to challenge them and and then it get takes years for them to be

overturned and by the time they're overturned the government can just pass a new dis India act and legitimize those

things uh and say that Parliament um you know has created this law and then you'll have to go to court again to

challenge the law so the speed with which the government can create rules regulations and enforce them is far

greater than the ability of our courts to uh deal with the effective illegality of these issues and that for me is

becoming a very very worrying Trend um and we might see more of this even after the dising ACT uh because of what we've

seen in the data protection bill that the government has given itself almost I mean multiple aspects have been just

delegated to new regulation or to the rules and it's and which means that rules don't

necessarily rules get tabled in Parliament they can get criticized but they have to be reviewed by a committee

on subordinate legislation um and anyway laws are also being passed in Parliament without the

government being much heed to debate so there aren't many amendments and so broadly the framework

that we're seeing from a legal perspective that enables censorship is becoming more and more powerful in the

centralization of Power with the government that allows them to do whatever they want be honest and uh that

that's becoming extremely worrying u in terms of the rules and regulations we seeing um I don't know how this is going

to be solved um but we are going to elections and perhaps there's a democratic solution to this problem uh

because an all powerful government creating rules as in when they want and how they want um and that there isn't

sufficient public consultation there aren't enough checks and balances uh and courts don't have the capacity to

act fast it seems or perhaps the incling or the inclination to act fast enough so it's a woring

situation right um final question um regarding the fact check unit what according to you

are the potential implications of this rule uh and the fact unit on the journalistic practices in India and the

Press freedom in India so um like I said one of the things uh is that it

basically censors the spread of news uh because the government can censor it on social media see the

difference between online news and print publication is that online news can sustain it can sustain it has a high

self life it can be read 10 years later as well right so the focus of the government is to deal primarily with

online news because if it's out in the paper today you won't read it next day or

after 15 days or after one year whereas the internet it can be found it can be read it can be shared uh and the

implication here was to prevent the sharing of journalistic output um the the other thing that would happen is

that it's in a sense um a fact check unit can over a journalistic um output uh and and so uh your

reporting on the government might actually get impacted or reduced because if you feel that the

sources that you're citing and the interpretation that you're citing is going to be treated as fake or false by

the government and taken down um then that effort that goes into reporting it seems worth

L um the other thing that the fact check unit does and you know Justice pel in his judgment mentioned this U that it

that it basically creates uh two typologies of content two information classes one set of information class

which is news related to the government and other that is not related to the government so news related to The

Government Can Be censored by the fact check unit and the rest of it needs to go through a

separate process altoe um and so it just makes it the easier to censor government news which

means that the propensity to publish news related to the government especially if it's critical goes down um

so from a journalistic perspective uh you know it life becomes tough right um just to add to that uh

the egi legal council had also mentioned that investigative journalism is going to become more complicated in that sense

because with sources are we going to talk to and how are you going to give weightage to that all right so thank you

Nik for sharing your inputs here U medianama will be coming up with a longer copy on what exactly went down in

the hearing um so for everyone here who came in to listen to us thank you and for more information on what happened on

the fact Che un at front please do follow media now thank you