GOVERNMENT 'TAKEDOWN ORDERS' AGAINST MISINFORMATION & FAKE NEWS:

TIPS FOR PUBLISHERS AND SOCIAL MEDIA COMPANIES

THE STORY

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Continuing the fight against misinformation and fake news the Ministry of Electronics & Information Technology (MEITY) continues to issue take down orders to all social media companies for removing several social media posts across the country, which the government considers fake or misleading.

 

Facebook has disclosed that it restricted 878 items in India from July-Dec 2020 on requests made by government.

 

This week MEITY issued takedown orders to all social media companies against any content that refers "Indian variant of the coronavirus. This was triggered when WHO in a statement said that the coronavirus variant B.1.617, first identified in India last year, was being classified as a variant of global concern.

 

State governments are also pursuing criminal cases against citizens who are criticizing them on social media over provision and management of healthcare facilities. Supreme Court in an ongoing matter has also condemned these state actions and termed them illegal, further warning the governments of such actions and stating that the same will be considered contempt of Supreme Court.

 

In another incidence a BJP national spokesperson’s tweet on alleged ‘Congress toolkit to defame government’s COVID-19 efforts’ was labelled and tagged as ‘manipulated media’ by Twitter under one of its flagging policy. Followed this was a government order on Twitter to remove the flag ‘manipulated media’ stating the reason that the an is investigation before a law enforcement agency over this matter.

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TIPS FOR PUBLISHERS AND SOCIAL MEDIA COMPANIES

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Till the time such newly acquired powers by the government under the IT Rules 2021 notified recently, are thoroughly analyzed by constitutional courts in India, some see the current scenario as an enormous threat to free speech and a major concern for social media companies.

 

Such a ‘Keyword Based Censorship’ approach is also likely to pose difficulties for social media companies, as there are hundreds of thousands of such posts made every day.

 

The limitation of liability for social media companies and other intermediaries under the legal doctrine of ‘Safe Harbor’ embodied under Section 79 of IT Act Information Technology Act, 2000, also seems to be under serious threat in these circumstances.

 

Social media companies, news publishers and other intermediaries seeking to minimize legal risks associated with fake news or misinformation can take the following proactive steps:

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1. NOTICES & DISCLAIMERS

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While determining an intermediary’s liability for misleading or fake news, the courts in India often see whether the publisher portrays itself as a source of fiction, parody, or satire. Therefore, intermediaries can mitigate legal risks by crafting appropriate language in notices and copyright disclaimers, and place the such disclaimers conspicuously on their online platforms. They can also include appropriate copyright notice on their Web sites, original articles, artwork, and other creative materials to inform the public that such works are protected by copyright.

 

2. WEB SITE TERMS & CONDITIONS AND PRIVACY POLICIES

 

A well drafted Terms and Conditions including appropriate notices, restrictions, liability disclaimers, governing law, and other important legal guidelines can be extremely helpful in limiting your liability as an intermediary.

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3. MEDIA LIABILITY INSURANCE

 

There are several insurance companies in India that offer media liability insurance policy options for writers, including online publishers. These underwriters offer several protections against many liability claims publishers or other intermediaries may face including defamation, intellectual property infringement and violations of the right of publicity. As there is a substantial risk of legal liability associated with intermediaries, news publishers, it is advisable to obtain an appropriate media liability insurance coverage.