When government tells you what is right and wrong, it is not a democracy: Mishi Choudhary on Fact-Checking Units

The Supreme Court on Thursday stayed a Central government gazette notification for the setting up of Fact Checking Units (FCUs), which are empowered to identify and tag 'false' or 'fake' online news against the government..While staying the notification a day after it was issued, the Court underscored that the matter involved a serious constitutional question and would have an impact on the right to freedom of speech and expression. It also underscored that the challenge to FCUs was pending adjudication before the Bombay High Court..Bar & Bench’s Aamir Khan spoke to digital rights lawyer and founder of SFLC.in Mishi Choudhary on the impact of FCUs on existing fact-checkers who are not aligned with the government, whether there is scope for collaboration in an era of disinformation, and more..[Watch the full interview here].Edited snippets of the interview follow..Aamir Khan (AK): While staying the notification to form FCUs, the Supreme Court underscored that it involves a serious question of freedom of speech and expression. Your thoughts? .Mishi Choudhary (MC): I think we have seen at least some reporting about the arguments as they were made out and those arguments correctly point out that this is a form of proxy censorship, where the examiner checks their own paper and awards themselves whatever grade they would like. The government, by this notification, has a fact-checking unit...it becomes the final authority on truth. You are a journalist and so are many of us in terms of people who keep a check on what comes out and what does not. Our job in our democracy is to ensure that everything is fact-checked, or at least we take our information from there. Now, if only the government decides to be the arbiter of truth...It can be yes, it can be no. If they say it's raining, then it's raining. If they say no, it's not. But as many people have pointed out, our job is to look outside and see if it is raining..AK: Do you think the government could have waited for a final decision on the issue by the Bombay High Court and then taken it forward through a notification? .MC: Yes. In January, there was a split decision and then the matter was referred to a third judge, who refused to actually stay this notification of FCU. Once that is done, then obviously the government is free to do it and they can say elections are coming, we need to do such a thing. Legally there was nothing which was preventing them from doing that.The matter is not yet heard on merits, which is a problem. I think it's always a problem because our courts take too long to hear matters and then facts change on the ground. .AK: How can FCUs impact the existing fact-checking units which are not aligned with the government? .MC: That’s a great question. The FCU by the Press Information Bureau (PIB) will be the only one which has actually been notified in a gazette notification in the Rules. So the government is already saying that whatever comes out of this fact-checking unit is going to hold superiority over everything else and that obviously tells everybody to say this is more legitimate than the others. That at least casts a shadow of doubt on anyone else who comes up with whatsoever is the result of their fact-checking. Every five years, we have elections and parties can come and go. But then there's singularity, which is decided by the government. That's not the kind of democracy or open society anybody lives in - where the government tells you what is right, what is wrong or what is true or what is false.There is an International Fact-Checking Network (IFCN), a body that has certain code of conduct. There are certain principles which have to be complied with, then only fact-checking units are recognised by the IFCN..AK: Do you see scope for collaboration between independent fact-checking units and those of the government?.MC: That’s a great idea. I would say I do think some teams, when they work collaboratively for the larger good, they can definitely come up with things. There are things which a Boom Live or an AltNews can teach because they have had a lot of experience and the international fact-checking bodies can teach a lot of it.Collaboration is always good. But what is the intent here? Is the intent to actually really do a fact-check and make sure that we are checking misinformation or disinformation? Or is the intent only when an opposition political party says something or a person who we don't like says something?We want to only check in the name of fact-checking and taking it down. So the intent really matters...But ultimately, I am the government. I will only tell you what the right way to do it is..AK: Justice GS Patel of the Bombay High Court, who struck down the provision, said that there are neither guidelines nor procedures for hearing those who oppose these FCUs. Do you think it is problematic? .MC: I think you're rightly pointing out to Rule 16 of confidentiality, which are different rules, not the IT Rules. But what we've seen in terms of secrecy is that every time content is being taken down, there is now a secret communication between the Ministry of Electronics and Information Technology (MetiY) and the companies. Then some companies will send a notification to the person whose content has been taken down. And they would just say 'we got a request from the government and now we are taking your content down'. That was supposed to be for the emergency powers of the executive to block access to information on digital platforms.But now, we've expanded it to say whenever the government tells you to remove anything, then you're bound to do that, because there are open warnings that we'll take away your safe harbour provision. Nobody takes away safe harbour provision. It's a legal defense mechanism, but obviously our courts are also not implementing or giving orders for what the loss is. .AK: In an era of disinformation, can the government argue that we have to tackle the issue because there are a lot of misleading claims and few fact-checking units?.MC: What you have paraphrased is not what the government has done. They haven't said, 'let us come and help you.' They have said, 'we have decided this is what the truth would be'.I think that's a major problem. When the government becomes the arbiter of truth, when they have become the decision makers. They haven't said 'let's work collaboratively. Let's figure this out and we'll work on it'.I think there's a lot of big responsibility on the platforms for sure to have large trust and safety teams and also content moderation teams which actually follow the policies.