Fact-Checking or Fact-Hiding? Our RTI inquiring about the Karnataka Fact Checking Unit rejected!

tl;dr

On July 13, 2023 we filed a Right to Information (RTI) request with the Public Information Officer (PIO) for the Office of Deputy Commissioner of Police for Bengaluru Police inquiring about the constitution of a fact checking unit by the Bengaluru Police. In a response dated August 11, 2023 our RTI application was rejected by the Office of the Commissioner of Police, Bengaluru City stating that the information sought is ‘completely vague, speculative and questionable’. However, since then the Chief Minister of Karnataka, Siddaramaiah has reportedly approved the setting up of a state-level fact check unit (FCU). It is worth noting that both phases of media reporting (initially around the potential formation of FCU and later around the declaration of its formation) contained similar information and inquiries raised through our RTI application were in fact aligned with that information.

Why should you care

The Karnataka FCU provides power to the executive branch of state government to monitor and determine ‘fake news’ on social media. Further, as explained by the Karnataka Minister of , Rural Development, Panchayati Raj, Information Technology (IT), and Bio Technology (BT) Priyank Kharge, any post tagged as fake by the FCU will be taken down and the government may take penal measures under appropriate provisions of the Indian Penal Code (IPC).

On August 27, 2023 the Editors Guild of India (EGI) released a press statement highlighting their concern over the fact checking unit stating, "any monitoring framework should follow principles of natural justice, including journalists and media bodies, so that press freedom is not tampered with" and urged the Karnataka government to specify the scope of the power of the FCU and to undertake a consultation process with press organisations while developing such a framework.

In response to the EGI’s statement, Priyank Kharge assured  the EGI that the FCU will maintain an “apolitical stance”, be “devoid of bias”, and will “transparently explain its methodologies employed to the public”. He said that the government is in the process of enlisting independent bodies to assist with the regulation of fake news and that the unit will follow the principles of natural justice. He also added that the FCU is in no way an attempt to impinge upon the freedom of the press.

Since at present, there is no clarity about the method of appointment of FCU members or its composition, the FCU’s ability to remain apolitical, devoid of bias, and free from executive pressure remains unanswered. Moreover, even if we take these assurances into account, the likelihood of such institutional design being misused still exists. In the absence of such independence, the FCU could vastly affect the nature of free speech on the internet through overbroad and arbitrary censorship - most importantly in the context of dissent.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Amendment Rules, 2023), which were notified by the Ministry of Electronics and Information Technology (MeitY) in April 2023, includes a similar fact checking provision. Under the Rules, a fact check unit may be notified, based solely on the discretion of the Union Government, which will be empowered to identify fake or false or misleading online content related to the government [Rule 3(1)(b)(v)]. Notably, Mr. Kunal Kamra, a political satirist and standup artist, the Editors Guild of India, and the Association of Indian Magazines have filed writ petitions before the Bombay High Court challenging the constitutionality of this provision. The Petitioners concluded their submissions, and the undertaking given by the Union Government to the Court to not constitute an FCU was extended to September 4, 2023. IFF has provided legal assistance in the matter to Kunal Kamra as well as the Association of Indian Magazines.

Akin to our concerns with Rule 3(1)(b)(v), the Karnataka government also assigns the executive controlled FCU arbitrary, overbroad powers to determine the authenticity of online content. Moreover, the vagueness of the undefined term “fake” makes such overbroad powers further susceptible to misuse. These efforts may cement the chilling effect on the fundamental right to speech and expression, particularly on news publishers, journalists, activists, etc. [Read our statement on the Amended Rules here].

Our RTI to the DCP, Bengaluru Police

As per a report dated June 21, 2023, Priyank Kharge announced the setting up of a state-level FCU in Karnataka saying that “the unit will not only be a fully operational department to monitor “fake news”, but will be able to pursue legal action with the support of the Home Department and Karnataka Police against those found guilty.”

The news report also stated that “This unit will be established in collaboration with the Home Department and will focus on identifying and addressing fake ideas or news that violate the Information Technology Act and are circulated on social media”.

Based on these reports, on July 13, 2023 we filed an RTI application with the DCP, Bengaluru Police requesting information on the upcoming FCU. We asked several questions in our RTI request which we have divided as per the categories below:

Concerning the allocation of duties between different departments:

1. Please share documents detailing the allocation planned among the different departments and agencies involved in the fact checking cell, such as the Home Department, Karnataka Police, and cybercrime unit?
   

Concerning the the procedures, tools, and technologies used by the unit:

1. Please provide documents detailing the methodologies/procedures, tools, and criteria the fact-checking unit will employ to verify information?
2. Please provide documents detailing the procedures the unit will adopt to ensure accuracy and reliability of its findings?
3. Please provide information on whether the fact-checking unit will undergo an external peer review process to validate its methodologies and ensure the integrity of its work? If so, please provide details on the peer review mechanisms that will be employed.
4. Please provide details on the transparency measures that will be implemented by the 'Fact-Checking' Unit to ensure accountability i.e, procedures the unit will adopt to disclose its methodology, sources, and biases to the public?
5. Please list the performance indicators and outcomes of the fact checking cell and how are they measured and reported?
   

Concerning the legality of the unit and policies undertaken:

1. Please mention the relevant legal framework that will govern the operations of the fact-checking unit.
2. Please provide details of any  legal/policy mechanisms in place to address issues of grievance redressal.
3. Please outline the policies and procedures that will govern the handling of personal data by the fact-checking unit?
   

Concerning the budget allocation and proposed spending of the FCU:

1. Please share details concerning the total budget allocated for the establishment and operation of the fact checking cell in Karnataka?
2. Please share documents detailing the budget spent/planned on the technical and human resources required for the fact checking cell, such as detection and fact-checking software, social media monitoring tools, and staff salaries?
   

Concerning personnel and logistics of the unit:

1. Please provide a list (if there exists) of all the social media monitoring cells that exist across the state.
2. Please provide information on the qualifications, expertise, and training that the personnel of the fact-checking unit will possess to effectively evaluate different types of information.

Response Received

We received a response from the PIO for the Office of the Commissioner of Police, Bengaluru Police dated August 11, 2023. The PIO rejected our RTI request stating that the information was “completely vague, speculative and questionable and that it does fall within the purview of Section 2(f) of the Right to Information Act, 2005.” Section 2(f) defines ‘information’ for the purposes of the RTI Act, 2005 and thus, any query which falls outside the ambit of Section 2(f) is not covered by the Act. However, with the recent reports announcing the constitution of the Karnataka FCU we are reassured that our RTI request was incorrectly rejected by the PIO. We believe that our queries raised in the RTI request highlight crucial information about the FCU and it should be made public in the interest of transparent and accountable governance. Further, if the Bengaluru Police believed that they weren’t the appropriate authority to approach for the RTI request, they are under obligation to transfer the request to the appropriate authority which can provide a satisfactory response to the queries raised in the RTI request

What are we doing next?

The Right to Information Act, 2005 under Section 19(1) allows an applicant to file an appeal with the First Appellate Authority in case of non-receipt or unsatisfactory response to the RTI request. On August 29, 2023 we have filed a first appeal with the First Appellate Authority & Deputy Commissioner of Police, Administration, Bengaluru City on the ground that the information sought by the applicant falls under the purview of ‘information’ as defined under Section 2(f) of the Right to Information Act, 2005. In our appeal, we also contest the PIO’s observation that the information sought was ‘completely vague’, ‘speculative’ or ‘questionable’ especially given the recent reports about the constitution of the FCU. We requested the First Appellate Authority to direct the concerned PIO to furnish the relevant information to us at the earliest.

In addition to the first appeal, on August 28, 2023 we filed another RTI request with the Secretariat of the Karnataka Chief Minister’s Office requesting a copy of the official notification announcing the establishment of the fact checking unit by the Karnataka government. We will continue to engage with the state authorities in good faith and hope to receive a satisfactory response soon. Broadly, we will continue to advocate against the formation of such an executive-controlled FCU at the Union and State level as this heightened level of executive control has the potential for introducing vague grounds such as “fake” for blocking content, bypassing principles of natural justice, introducing new avenues for internet censorship which may potentially bypass parliamentary safeguards, and threatening  press freedom in India. . The use of the IPC and IT Act, 2000 by the state government to invoke penal measures against content tagged as “fake” will expand the concerns beyond censorship on the internet to the infringement of rights in physical spaces as well.

Important Documents

1. Original RTI Application dated July 13, 2023 (link)
2. RTI Response dated August 11, 2023 (link)
3. First Appeal filed with the First Appellate Authority dated August 29, 2023 (link)
4. RTI Application requesting a copy of the official notification dated August 28, 2023 (link)
   

This post has been drafted by Saharsh Panjwani, Policy Intern at IFF and reviewed by the Policy Team.