In a blow for human rights, today, 6 April, 2023, as the budget session of the Indian Parliament ended, the Union Government brought into effect the proposed amendment to the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, targeting “fake” content online.
Moving forward, online intermediaries such as YouTube and Facebook will have to remove any information relating to the business of the Central Government that is identified as “fake or false or misleading” by fact checking units of the government. The particular agencies authorised trigger content removal will be notified by the Ministry of Electronics and Information Technology (MeitY).
Access Now has written to MeitY advising against proposals that expand the scope of the IT Rules to the detriment of free speech and expression. The government has only partly addressed these concerns, while retaining the substance of the provision. While the notified amendment, unlike the previous proposal, does not designate the Press Information Bureau as the appropriate fact checking agency, the ultimate effect is the same. It renders government agencies, as chosen by MeitY, the final arbiters of truth online.
This amendment is part of on-going efforts by Indian authorities to tighten control over online content. The IT Rules 2021 enable over-broad censorship, undermine free expression, and are unconstitutional — they must be suspended and reviewed in their entirety. However, instead of heeding the recommendation of stakeholders to review the Rules, the government keeps expanding their scope.
The government must withdraw this amendment and review the Rules. Any further changes must be enacted by legislators, not the government, after sustained and open consultations with all stakeholders, including civil society.
Update: January 27, 2023 — Access Now has submitted comments on the amendments to the proposed IT Rules that outline the urgent need to protect freedom of expression. The Indian government must immediately address the potential adverse impacts of these provisions dealing with misinformation or “fake” content, and uphold human rights.
January 19, 2023 — Access Now is alarmed by Indian authorities’ attempts to further tighten their control of the internet via proposed new content governance rules.
As part of revisions to the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, India’s Ministry of Electronics and Information Technology (MeitY) has extended its deadline for feedback on draft amendments for online gaming. At the same time, it has proposed an amendment requiring intermediaries to remove content that the central government’s Press Information Bureau or other authorised agencies deem to be “fake or false.” Including such content governance provisions at the last minute undermines the consultative process, and demonstrates the ongoing lack of transparency and open deliberation in MeitY’s rulemaking processes.
“The Central Government is designating its press relations office — the Press Information Bureau — as the online arbiter of what is true and what is false,” said Raman Jit Singh Chima, Asia Pacific Policy Director and Senior International Counsel at Access Now. “This will give them the power to decide what content stays up and what is taken down, without any parliamentary authorisation or legal authority whatsoever.”
The proposed provision will jeopardise press freedoms by making it almost impossible for media outlets to question or contradict the government’s version of events in their reports.
“Content governance rules directly impact the right to free expression and the very foundation of an open, safe, and free internet,” said Namrata Maheshwari, Asia Pacific Policy Counsel at Access Now. “Suddenly introducing such a vague proposal without prior public engagement, and leaving only one week for feedback, flies in the face of democracy and erodes public confidence in the consultation process.”
Indian authorities have been using ad-hoc executive rulemaking to piece together a content governance framework. Since their introduction in 2021, the IT Rules have been widely criticised for undermining free expression, privacy, and security. The legislation faces multiple legal challenges, with an Indian High Court having already stayed certain provisions due to the potential adverse impact on press freedoms.
Access Now, alongside partners, has previously called on the Indian Government to withdraw its amendments to the IT Rules — and now urges MeitY to withdraw this proposed amendment, and to refrain from further expanding the scope of the rules in such a piecemeal manner. Going forward, any content governance rules must be enacted through parliamentary legislation following specific, open consultation with civil society and impacted communities.