Central Idea

The addition of the fake news provision in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Intermediary Guidelines) must be seen in the context of protecting fundamental rights while combatting fake news. The recent addition by the central government clearly militates against settled law and the Constitution.

What is mean by Fake news?

Fake news refers to intentionally fabricated or misleading information presented as if it were real news. It can be spread through traditional media sources like newspapers or television, but it is more commonly associated with social media platforms and other online sources.
Fake news can range from completely made-up stories to misleading headlines and selectively edited or out-of-context information designed to deceive readers.
It is often used for political purposes, to manipulate public opinion or to spread misinformation about individuals, organizations or events.

Intermediary Guidelines of 2021: The most preferred democratic process to combat the threats and impact of fake news on a polity would be through Parliament-enacted laws. India opted for the speedier alternative of an addition to the Intermediary Guidelines of 2021 (as amended), through Rule 3(1)(v).
Can not disseminate misleading content: Under this rule, intermediaries including social media platforms have to ensure that users do not disseminate content that deceives or misleads on the origin or knowingly and intentionally communicates any information which is patently false or misleading in nature but may reasonably be perceived as a fact.

Complaints and grievance: Any complaints from users, government, or court have to be actioned by the grievance officer of an intermediary, including social media platforms, within 15 days. This timeframe for actioning a complaint for complaints of false or misleading news is reduced to 72 hours.
Resolution: The next step for resolution is provided through the Grievance Appellate Committees, which the government recently announced appointments for.
Other actions: These remedies are independent of and in addition to the remedies available in law for a government agency to seek takedowns or blocking, as per due process or for courts to decide thereon.

Provisions already exists: The recent addition of a separate category for restraint on dissemination by users of content in respect of any business of the Central Government is unwarranted as provisions already exist. The restraint is on users and not intermediaries, as misconceived by many. The onus on intermediaries is only of reasonable effort.
No transparency: With merely a central government-authorised fact check unit saying so, content could be classified as fake, false or misleading and a takedown and action necessitated, without even a semblance of due process.
No legitimacy: In the present instance, there is an absolute absence of legitimate aim for this additional restriction on users and an abject lack of procedures that would assure due process.

The recent addition clearly militates against settled law and the Constitution: The Supreme Court in Puttaswamy judgment reaffirmed the need for legitimacy, supported by parliament enacted laws, which are proportionate to meet the test of constitutionality.
Media One case: Supreme Court’s recent judgment in the Media One case (Madhyamam Broadcasting Limited v. Union of India, April 5, 2023) reiterates that any law or regulation inconsistent with fundamental rights is void. This judgment also reaffirms the four principles that will decide the constitutionality of a law or regulation: (i) unreasonableness or irrationality; (ii) illegality; and (iii) procedural impropriety.

Inciting communal violence: In India, fake news has been known to incite communal violence. For instance, the spread of fake news on social media was one of the factors behind the Muzaffarnagar riots of 2013.
Undermining public trust: Fake news can undermine public trust in institutions and the media. This can have serious consequences for democracy and social cohesion.
Impact on health: Fake news about health issues can have serious consequences. For example, during the COVID-19 pandemic, fake news about remedies and cures for the disease led to people consuming dangerous substances.
Misinformation during elections: Fake news can also be used to spread misinformation during elections, which can influence voters and distort the democratic process.
Economic harm: Fake news can cause economic harm by spreading false information about businesses, leading to loss of investor confidence and financial losses.
Spreading rumors: Fake news can also be used to spread rumors about individuals, which can have serious consequences, such as the recent case of fake news leading to the lynching of two men in Assam.

The recent addition is unsustainable and unwarranted as provisions already exist. The fight should be for the protection of fundamental rights that are essential to our very existence.