The Union Government, on April 6, 2023, promulgated certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, a piece of delegated legislation under the Information Technology Act, 2000.
Through these amendments, inter alia, social media intermediaries or SMI (such as Twitter, Facebook, etc.) are now obligated under Rule 3(1)(b)(v) of the IT Rules to inform their users, through internal rules, regulations and other policies, to not ‘host, display, upload, modify, publish, transmit, store, update or share any information’ which is ‘identified as fake or false or misleading by [a] fact check unit of the Central Government’ in respect of ‘any business of’ the Union government.
In a situation where SMIs fail to carry out this obligation, they will be exposed to potentially losing their immunity from any civil or criminal liability as intermediaries for any third-party content hosted on their platforms. This situation arises due to the legislative framework manifested in the IT Rules. Section 79 of the Act reads that intermediaries are immune from hosting third-party data, information, or communication, provided that they observe ‘due diligence while discharging [their] duties’ under the Act – which are provided under the IT Rules.
If an intermediary fails to do so, then the immunity from any liability under Section 79 will not extend to such a person. This is also reiterated under Rule 7 of the IT Rules. This development raises some important questions of constitutional law, which shall be discussed in this essay.
By way of the amendment to Rule 3(1)(b)(v), the Union government now possesses the authority to necessitate SMIs carry out the due diligence and moderate information and communications of third-parties on their platforms (unless they wish to lose their immunity under Section 79) in accordance with the version of events circulated by a ‘fact check unit’ of the Union government.
However, it is not clear under the IT Rules how this would be achieved. One possible way of doing so, inevitably, would be to censor the content which is contrary to the fact-checked version of the government. This is so because Rule 3(1)(b)(v) requires a SMI ‘to cause the user’ to not host certain kinds of information. ‘To cause’ means to produce a positive effect towards the achievement of a desired result (per Black’s Law Dictionary (Bryan Garner Ed., 2009), at 250).
Another way to do so would be to flag content as deceptive or incorrect for the benefit of other users accessing such content (the way, for example, Twitter’s manipulative media policy ostensibly operates). Therefore, the visible objective of amendment to Rule 3(1)(b)(v) is to mandate SMIs to moderate content by not allowing users – or, at least, disincentivising them – to communicate information which is contrary to the Government’s version of events in respect of its business.
In this regard, the United States’ Fourth Circuit Court’s decision in Zeran v. America Online, Inc. (1997) is important in the context of Section 230 of the Communication Decency Act (which Section 79 of the Act is based on). In this case, the appellant filed a lawsuit of defamation against America Online, Inc.’s (AOL) website for third-party content circulated on its website.
While dismissing the appeal, the court observed that the purpose of Section 230 (which granted AOL immunity for third-party content) was to catalyse the dissemination of diverse speech on the internet, and that the imposition of any liability on the intermediary would be ‘simply another form of intrusive government regulation of speech.’
It further noted that an intermediary, if at the risk of incurring any kind of liability or losing its legal immunity, is de facto bound to ‘severely restrict the number and type of messages posted’. In addition, it is but natural for the Government to only impose its version of the truth which is otherwise unsuitable for the ruling political dispensation.
Therefore, while immunity under Section 79, as opposed to Section 230 of the CDA, is explicitly subject to ‘due diligence’ conditions, the implications of introducing a ‘fact check’ mechanism under Rule 3(1)(b)(v) are clearly stated in Zeran: the problem becomes one of the State exercising a Heckler’s veto, and causing a chilling effect on freedom of speech, at its convenience.
Understood this way, the amendment prima facie espouses a chilling effect on speech being disseminated on SMI platforms.
The validity of the amendment to Rule 3(1)(b)(v) would, therefore, have to be judged on the anvil of Article 19(1)(a) of the Constitution of India. While Article 19(1)(a) guarantees simply the right to freedom of speech and expression, decisions of various courts have expanded its purview beyond the provision’s language.
Decisions of the high courts of Delhi (Srishti School, 2011) and Bombay (Anand Patwardhan, 1996) have rejected the idea of the state possessing monopoly over the ‘true’ portrayal of an event. Building on the ideas of J.S. Mill (here), Justice Muralidhar presciently noted in Srishti that the ‘right of the viewer to think autonomously while reacting […], and to make informed choices, without being controlled by the State, also constitutes an integral part of the freedom of speech and expression’.
As Gautam Bhatia has demonstrated elsewhere, these decisions showcase a distaste towards legal paternalism and the state’s ability to deem its version of the truth as the universal truth.
However, Srishti and Patwardhan concerned a direct lis between the state and its citizens, and did not involve a private intermediary moderating content at the directions of the state. It is yet only speculative how SMIs will eventually promote the government’s version of events over others circulating online.
Moreover, the ‘chilling effect’ doctrine’s application too seems a difficult at this point. In Anuradha Basin v. Union of India (2020), one of the petitioners’ newspaper could not be circulated owing to internet shutdowns in Jammu and Kashmir. Accordingly, they sought for the Supreme Court to declare such shutdowns as unconstitutional, in violation of Article 19(1)(a).
While the court accepted the ‘chilling effect’ test as applicable under Article 19(1)(a), the question of what standard must be applied to test such regulations on speech was left open for discussion in a future case. Further, the court had also held that constitutionally testing the chilling effect of a regulation cannot be ‘purely speculative, unless evidence is brought before the court to enable it to give a clear finding’.
Therefore, for now, in the absence of evidence to showcase the amendment’s actual impact on free speech, any conclusion as to its constitutional validity is practically difficult to arrive at, even though it may seem prima facie unconstitutional.
The issues posed by the amendment are a unique legal development. Indian courts have not yet substantively dealt with legal cases where online speech of private citizens is sought to be controlled by the government by obligating intermediaries to carry out the ‘due diligence’ of moderating content online in accordance with the government’s version of the truth.
As opposed to much more explicit guarantees of free speech against the moderation by non-state actors (such as Article 13(3) of the American Convention on Human Rights), Article 19(1)(a) of the Constitution does not provide any immediate answers of how valid such (indirect) censorships or chilling effect on speech may be.
If and when the amendment is challenged eventually in courts, the relationship between social media platforms, their users, and the state’s power to insinuate its authority over the citizen’s right to freedom of speech and the prevailing version of truth will be further shaped.
This article was originally published as a guest post on Gautam Bhatia’s blog, Indian Constitutional Law and Philosophy. It has been lightly edited for style.