One person's fact, another's fake news: Media must improve verification too

It will benefit the media to make the standards of fact-checking more rigorous, with information being verified by at least two independent sources

The Bombay High Court’s decision to strike down the central government’s Fact Check Unit (FCU) offers a reassuring judicial confirmation of basic constitutional principles critical to the functioning of democracy in India. The 2-1 verdict underlined that the existence of such an institution violated fundamental rights such as freedom of speech, the right to practise any profession or occupation, trade or business, and the right to equal protection before the law. The verdict set out in no uncertain terms the impact of the FCU. It pointed out that judging information in terms of fake, false or misleading was “vague” and “overbroad”, would have a “chilling effect” on freedom of speech, and was tantamount to censorship. The complex journey of this case reflects an encouraging exercise of judicial powers in defence of citizens’ rights even as it reflects the intent of the Indian state to decide the nature of information that Indian citizens can receive.

The FCU came into being following an amendment to the Information Technology Rules, 2021, empowering the government to identify fake or misleading news pertaining to the business of the government (including ministries and public-sector units) on social-media platforms. Under the amendment, social-media platforms were required to take down news identified by the FCU as fake or misleading if they were to retain their legal immunity on third-party content they published. The rules were challenged in the Bombay High Court by standup comic Kunal Kamra, the Editor’s Guild of India, and the Indian Association of Magazines on grounds of unreasonable restrictions on freedom of speech and expression. On January 31, the two-judge Bench delivered a split verdict, requiring the matter to be referred to a third judge. This was done in February, but the judge concerned declined to stay the establishment of the FCU until he delivered his final opinion. In response, the government moved swiftly to notify the FCU under the Press Information Bureau (PIB) in March. The PIB described the measure as “pro-active”, with the FCU to be headed and staffed by Indian Information Service officers, who could take suo motu action or consider third-party complaints. In the same month, the petitioners moved the Supreme Court to stay the FCU, which was duly granted on the grounds that the petition raised serious constitutional questions. The tie-breaking judgment underlined the criticality of these questions.

Though the Bombay High Court verdict has reinstated the principles of freedom of information — and opinion — the fact that the government considered a bureaucrat-run fact-checking institution suggests that scrutiny of the media in some form or the other is unlikely to abate. In a media industry as varied and rambunctious and political leaders becoming increasingly sensitive, it is possible that one person’s fact would be another person’s fake news. There is, of course, a strong case for politicians to develop the kind of approach that enables the standup comedy and opinion industry in vibrant western democracies to flourish. More practically, it would benefit the media to make the standards of fact-checking more rigorous. Editorial fact-checkers in reputed media outlets the world over insist that a fact is verified by at least two independent sources. This should become a gold standard so that variations of the FCU idea do not emerge again.