MeitY Notifies Information Technology Amendment Rules: Empowers Centre to Identify ‘Fake News’ in Social Media About Central Government

MeitY Notifies Information Technology Amendment Rules: Empowers Centre to Identify ‘Fake News’ in Social Media About Central Government

The Ministry of Electronics and Information Technology (MeitY), Government of India, has notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.

The 2023 Amendment grants power to MeitY to notify a fact check unit of the Central Government that will identify fake or false or misleading online content in respect to any business of the Central Government [Rule 3(1)(b)(v)].

As per Section 3, one of the monitoring requirements added is that social media intermediaries (such as Facebook, Twitter) and telecom service providers shall inform the user not to host, display, upload, modify, publish, transmit, store, update or share any information in respect of any business of the Central Government, that is identified as fake or false or misleading by such fact check unit.

In the event that social media intermediaries violate this rule, they will lose their protection within the 'safe harbor' which they are entitled to.

The Internet Freedom Foundation (IFF), an Indian digital liberties organization has issued a statement on the 2023 amendment raising a pertinent concern that the unguided power bestowed on the fact check unit of the Government to identify fake online content can ultimately have a ‘chilling effect’ which may jeopardize the fundamental right to freedom of speech and expression as enshrined in our Indian Constitution.

“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 cements the chilling effect on the fundamental right to speech and expression, particularly on news publishers, journalists, activities etc.,” the statement reads.

According to IFF, the fact check unit would, essentially, have the power to evade the statutory prescription of Section 69A of the IT Act, which authorizes the Central Government or its authorized officers to issue directions for blocking public access of any information through any computer resource. Under Section 69A the Government or the concerned officer is required to follow certain processes and safeguards in blocking public access. As per IFF’s statement the notification also runs contrary to the judgment of the Supreme Court [Shreya Singhal v. Union of India] that laid down procedures for blocking content.

Beside this, the notification also aims to regulate online gaming.

Exercising power under Section 87(1), Section 87(2)(z) and Section 87(2)(zg) of the Information Technology Act it has amended the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (2021 Rules). In the Definition Clause, the definitions of ‘online gaming intermediary,’ ‘online gaming self-regulatory body’, ‘online real money game’, ‘permissible online game’ and ‘permissible online real money game’ have been inserted. It reads as follows:

“Rule 2(ii)(qa) ‘online game’ means a game that is offered on the Internet and is accessible by a user through a computer resource or an intermediary.

Explanation. —In this clause, ‘Internet’ means the combination of computer facilities and electromagnetic transmission media, and related equipment and software, comprising the interconnected worldwide network of computer networks that transmits information based on a protocol for controlling such transmission;

(qb) ‘online gaming intermediary’ means any intermediary that enables the users of its computer resource to access one or more online games;

(qc) ‘online gaming self-regulatory body’ means an entity designated as such under rule 4A;

(qd) ‘online real money game’ means an online game where a user makes a deposit in cash or kind with the expectation of earning winnings on that deposit.

Explanation. —In this clause, ‘winnings’ means any prize, in cash or kind, which is distributed or intended to be distributed to a user of an online game based on the performance of the user and in accordance with the rules of such online game;

(qe) ‘permissible online game’ means a permissible online real money game or any other online game that is not an online real money game;

(qf) ‘permissible online real money game’ means an online real money game verified by an online gaming self-regulatory body under rule 4A;”.

According to the 2023 Amendment, Rule 3(1) it is essential for online gaming intermediaries to observe the due diligence requirements prescribed therein. The due diligence requirements have also undergone. A number of modifications have also been made to the due diligence requirements. The amendment contemplates the intermediaries are required to inform its rules and regulations, privacy policy or user agreement to the user to not host, display, upload, modify, publish, transmit, store, update or share any information that [Rule 3(1)(b)]-

(i) is in the nature of an online game that is not verified as a permissible online game;

(ii) is in the nature of advertisement or surrogate advertisement or promotion of an online game that is not a permissible online game, or of any online gaming intermediary offering such an online game;

(iii) violates any law for the time being in force.

Moreover, new provisions have been added to the 2023 amendment with respect to verification of online real money games. The verification obligations would be applicable only after three months from the date of designating at least three online gaming self-regulatory bodies [Rule 4B].

The Central Government does, however, have the authority to direct an online game to comply with its due diligence obligations prior to the expiry of the three months. It is clarified that certain obligations can also be bestowed on online games other than online real money games [Rule 4C].