Internet Freedom Foundation is an organization that has been promoted by knowledgeable legal experts. However in recent times the statements coming out of IFF are biased and lack proper research. One of the latest such statements is on the new Intermediary Guidelines of 6th April 2023 where IFF has echoed the Editor’s Guild view.
The view is contained in the following press release.
The essential aspects of the statement are as follows.
- ” a fact check unit notified, based solely on the discretion of the Union Government, will be empowered to identify fake or false or misleading online content related to the government [Rule 3(1)(b)(v)].
- The inclusion of the latter under Rule 3 makes taking action against content identified by such a fact check unit a due diligence requirement for intermediaries”
- “In an event where any intermediaries, including social media intermediaries (Facebook, Twitter etc.),Internet Service Providers (ISPs) (Airtel, ACT, Jio etc.), other service providers, fail to/ decide against taking action on content identified as “fake” or “false” by the notified fact check unit, they will risk losing their safe harbour protections.”
- Assigning any unit of the government such arbitrary, overbroad powers to determine the authenticity of online content bypasses the principles of natural justice, thus making it an unconstitutional exercise.
- “The notification of these amended rules cement the chilling effect on the fundamental right to speech and expression, particularly on news publishers, journalists, activists, etc.”
- .”The fact check unit, notified by the Executive, could effectively issue a takedown order to social media platforms and even other intermediaries across the internet stack, potentially bypassing the process statutorily prescribed under Section 69A of the IT Act, 2000.”
- ” In addition to circumventing the parliamentary procedures required to expand the scope of the parent legislation, i.e. the IT Act, these notified amendments are also in gross violation of the Hon’ble Supreme Court ruling in Shreya Singhal vs. Union of India (2013) which laid down strict procedures for blocking content.”
- “Finally, the vagueness of the undefined terms such as “fake”, “false”, “misleading” make such overbroad powers further susceptible to misuse”
In our considered opinion the above observations are false and misleading and makes the article published on the website of IFF lose the protection under Section 79 if such a protection was available. If any person is aggrieved by the above article and files a complaint in a Court, IFF should not be able to claim protection since the false nature of the content has been called out by us in the public domain. It is not necessary for either the person making the call or the Government to issue take down notice nor it is mandatory for IFF to take down the content even if they receive any notice other than from a competent court or an agency authorized under Section 69A of ITA 2000. (Which the fact check agency mentioned in the guidelines is not).
To clarify, Section 79 provides some privilege to “Intermediaries”. Intermediaries who donot follow certain due diligence (as indicated under Section 79(2)c) will lose protection under Section 79(1). The elements of due diligence are indicated in the Intermediary Guidelines. But non compliance of the guidelines does not mandate taking down of the content. Taking down responsibility comes in when there is a Court order or an order from a competent authority like an order issued under Section 69A of the ITA 2000. Even a legal notice from an affected party does not constitute a mandate to take down the content.
Additionally, we must recognize that not all organizations are Intermediaries”. The criteria for intermediaries go by the definition of Intermediaries under section 2(w) and 79(2) (a) and (b) .
In the case of IFF press release, the hosting company say godaddy.com (or any other) is an intermediary. However IFF is the owner of the content and is not an Intermediary and hence not protected for any damages that may result to any member of the public or the Government if such an affected party can prove the damage in the Court.
The notification of the MeitY (Copy available here) does not mandate that action need to be taken by an intermediary if any content is flagged by the fact check agency of the Government. This fact check unit would be one of the many such fact checking units that would be available on the web including naavi.org or AltNews. PIBFactCheck handle on Twitter is not a notified authority under Section 69A and is for public information purpose only.
It is open to the Court to give more weightage to the Government body instead of a private fact checking body like Altnews or Naavi.org or rely on its own judgement based on the information placed before the Court during the trial.
In view of the above points 1 and 2 of the IFF statement listed above are false and speculative.
Point number 3 to the extent a “Risk” exists is correct. But a mere existence of “Risk” is not to say that the event will actually happen. For example if a website has a risk of being hacked, it does not mean that it has been hacked.
Since there is no “arbitrary” power vested with the Government fact check body, point number 4 is incorrect, speculative and is a propaganda which can be argued as malicious and involves a conspiracy with Editor’s Guild for some common purpose.
For the same reason, point number 5 on “Chilling effect” is a speculative expression.
Point no 6 is blatantly false and can only be saved by the word “could effectively”.
Point no 7 is misleading since the said Supreme Court judgement upheld section 79(1) and 79(2) and only read down 79(3) regarding when the intermediary is expected to be considered as “Having knowledge” by linking it to a judicial order or an “appropriate” Government or agency and that the fact checking agency has not been notified as such an agency under Section 69A.
Point no 8 is a vague allegation that can be raised against any legislation. It is not substantiated and cannot be substantiated. Every law is subject to interpretation and it is the duty of the Court to clarify when required what is the clarity. This article is an attempt to provide logic to an opinion that the IFF posting is misleading and false. This is an example of what can be a “Fact Check” which is not a binary stamp “True” or “False”. In many instances such a detailed counter would be required to brand a report as “Misleading”.
In totality therefore, it is my considered view that the IFF press statement was unbecoming of a professional organization. In fact, it is difficult to accept that the experts in the organization are not aware of the points raised by me here. They are aware of it perhaps better than me. It would have been prudent for IFF if they had mentioned that there could be many views and interpretations of the notification and their view is one of the many views.
I would not expect Editor’s Guild to have the understanding of the law but IFF cannot parrot the Editor’s Guild views as if it is ignorant of the law.
I hope IFF does not fall into the habit of opposing any thing the Government proposes as “Un constitutional” since it would defame the Constitution itself. I hope IFF takes this as a friendly suggestion.
Naavi
