Govt Not Repository Of Truth, Right Of Citizens To Doubt And Question It: Bombay High Court Observes In IT Rules Amendment Challenge

Justice GS Patel remarked,

“In a democratic process, the essence of which is discourse, government itself is a participant. It is not repository of truth that cannot be questioned. Forget the fundamental right to lie, it is the citizens right to doubt, question the government and it has to answer. This power here [of FCU], it's very difficult”.

The judge also wondered who will fact-check the FCU. He added that if Press Information Bureau posts some news which is fake, nothing will be done about it under the Rules.

A division bench of Justice GS Patel and Justice Neela Gokhale was hearing petitions challenging Rule 3(i)(II)(C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 allowing the FCU to identify fake or misleading news about business of the government. The petitions have been filed by Kunal Kamra, the Editor's Guild, and Association of Indian Magazines.

The Court on Thursday had asked how same news published in print media can be any less fake or misleading than in digital medium and expressed concerns about the amended Rules singling out digital content.

The Centre, in a detailed affidavit in response to Kamra’s petition, has submitted that if a social media or news website continues hosting information the Government’s FCU has flagged as ‘false’ or ‘misleading’, it will have to defend itself before a court if action is taken.

Courtroom Exchange

Advocate Gautam Bhatia appearing for Association of Indian Magazines submitted that the government may argue that it knows best about government business. However, this can be done without removing the protection offered to intermediaries in the form of safe harbour, he said. He further argued that government is not the ‘arbiter of truth’.

Bhatia, referring to Centre’s affidavit, noted that it is claiming that certain kinds of speech are inherently of low value and therefore excluded from Article 19(1)(a). He argued that Article 19(2) exhaustively lists low value speech and thus government is not permitted to distinguish between high value and low value speech on its own via executive action.

Bhatia submitted that if the amendment was narrow, for example there are certain provisions that penalize falsehoods in form of disparaging advertisements, defamation, outraging modesty, then it wouldn't be a problem. These are already covered by Article 19(2), he said.

He cited a South African case where their CAG (Public Protector) investigated some extravagant improvements in then President, Jacob Zuma's Private House. He released a report (Nkandla report) regarding irregularities in use of public funds, without directly implicating the President. The opposition party, Democratic Alliance, circulated a SMS to voters that President misused public money. African National Congress approached the Johannesburg High Court against the SMS, which dismissed the case, observing that the SMS constituted fair comment. However, the Electoral Court reversed the judgment and asked the DA to send SMSs rectifying the earlier message.

In appeal, the judges of Constitutional Court delivered three judgments. Though the judgments set aside the Electoral Court’s decision, one of the judges concluded that the SMS was an opinion rather than a factual statement, and it doesn’t have to pronounce on whether the SMS was false or not. One of the judges said that because the word "stole" was used, it is a false statement. Another opinion was that the SMS doesn't say 'report says President committed theft'. It says report "shows" how President committed theft, Bhatia cited. Thus, no unanimity could be reached on whether saying that Zuma stole money for Nkandla is a valid factual statement, an invalid factual statement, a valid opinion or an invalid opinion.

“Over 3 courts, among multiple very reasonable judges, no one could agree on even what kind of statement this was. There is a very wide spectrum of a political speech, magazine covers that reasonable people can disagree with. If even constitutional court judges can disagree, one can imagine the situation where a govt FCU is put in charge to determine what's falsehood”, Bhatia argued.

On the issue of proportionality in restrictions, Bhatia argued that the Centre has the burden to show why less restrictive way to check fake news is not adopted.

Bhatia concluded his arguments by submitting that the Amendment has an indirect element of 'coercion' as an intermediary's commercial interest will not be served in court if safe harbour is lost.

Senior Advocate Arvind Datar appeared for New Broadcast and Digital Association consisting of 27 TV companies having 105 channels.

Datar submitted that an argument can be taken that fake, false, misleading are words of common use and need not be defined. However, merely because a law is meant to eradicate some social evil, it cannot be enforced without defining, he argued. He pointed that basic words are often defined in statutes, for example the Companies Act defines who a 'relative' is.

Datar submitted that the IT Rules already provide a three-tier grievance redressal mechanism and the centre’s affidavit does not show why a fast-track, executive and arbitrary method in the form of FCU is needed when there's already a system in place.

“The player is becoming the umpire”, Datar remarked referring to court’s earlier remark that government is a participant in the democracy. Justice Patel then wondered, “Who will check the FCU?”

Datar gave an example of the effect of the amended Rules. “Suppose something happens in Manipur, which is reported in regional language. The translated news put in social media will have higher reach. FCU can say that it is untrue…FCU can block the investigative reports choking the participatory democracy”, he argued.

Justice Patel noted that the Centre’s affidavit has elaborated on the Amendment and asked whether a constitutional court can hear a challenge to something an officer said in an affidavit.

Datar submitted that the Centre wants to keep broad powers for the FCU in the Amendment, but is denying that in the affidavit.

Datar argued that the amendment essentially adds "any law to prevent fake, false, or misleading news about government" in Article 19(2) of the Constitution. Thus, under the amended Rule, three words are added by executive action having an impact on basic structure of the Constitution, he argued.

Datar submitted that if a post is made on Facebook and government identifies it as fake, it becomes an order in rem, and no intermediary can host it. This is a gag order, Datar said.

“You are saying they are taking away the right of defence of an assertion, without an opportunity,” Justice Patel asked.

Datar said that controlling news is dangerous. “This obsession with regulating everything...today everyone is relying on social media for news. To be able to control such news through these Rules, that is the danger.”

Background

Through the new rule, social media platforms are supposed to make reasonable efforts prevent users from publishing information that "in respect of any business of the Central Government, is identified as fake or false or misleading” by the fact checking unit of government.

According to Kamra’s petition, he is a political satirist who relies on social media platforms to share his content and the Rules could lead to his content being arbitrarily blocked, taken down, or his social media accounts being suspended or deactivated.

The bench has earlier observed that the new amendment to IT Rules 2022 prima facie lacks the necessary safeguards to protect satire.

The Centre has claimed that it would be in public interest for “authentic information” to be ascertained and disseminated after fact checking by a government agency “so that the potential harm to the public at large can be contained.”

Kamra has alleged that the real motive behind the Rules is that the Central Government doesn’t want its actions to be scrutinized by anyone. The amendment wouldn’t be covered by any of the reasonable restrictions under Article 19 of the Constitution, he has argued.

Kamra has also contended that the Rule arbitrarily discriminates between fake/false or misleading information about the Central Government as opposed to all other forms of fake/false or misleading information.

Last week, the court asked whether upcoming political campaigns will be considered 'business of government' under the amended rule. It also asked if there was any protection for editors or editorial content under the amended Rules.

Case no. – WP(L)/9792/2023

Case Title – Kunal Kamra v. Union of India

Click Here To Read Arguments of Association of Indian Magazines

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