[IT Rules Amendment] No Immunity To Intermediaries That Fail To Remove Content Flagged By Fact Checking Unit: Centre To Bombay High Court

If a social media or news website decides to continue hosting information the Government’s Fact Checking Unit (FCU) flags as ‘false’ or ‘misleading’ it will have to defend its decision before a court if action is taken, the Union Ministry of Electronics and Information Technology (MeitY) has informed the Bombay High Court in an affidavit.

The immunity such a website or intermediary enjoys from liability under Section 79 of the IT Act wouldn’t apply if it failed to pay heed, the affidavit adds.

MeitY tendered the affidavit on Tuesday in response to stand-up comedian Kunal Kamra’s plea challenging an amendment to the Information Technology Rules 2023 allowing the FCU to identify fake or misleading news against government. During the hearing the Ministry extended its statement not to notify the FCU till June 10.

The affidavit rejects the petitioners’ allegations that the FCU would have a chilling effect on free speech or it could order an intermediary to take down content about government, found misleading and fake, and states that the only real deviation from the previous Rules is intermediaries not enjoying absolute immunity.

“The only distinction would be if the intermediary, despite knowledge about the fact check exercise finding the information/content to be misleading, fake or false chooses not to take any step [which it can choose to do], it would not get immunity from liability under section 79 of the IT Act and will have to defend its action on merits before the court of law where an action is instituted against the Creator or Sender and the intermediary,” the affidavit states.

It adds that the right to get true information is also a fundamental right.

"The government is under a constitutional obligation to ensure that through a regulatory mechanism, the citizens of this country get information and content which is true and correct and are protected from receiving deceptive and intentionally propagated and peddled information," the affidavit said.

Explaining how the Rule would work the affidavit explains that if the creator or author intentionally publishes or shares misleading content the recipient who is misled or defamed by it can approach the intermediary’s grievance redressal mechanism under Rule 3(2) of the IT Rules. The aggrieved party can then approach the Grievance Appellate Committee under Rule #A of the Rules.

Failing the two remedies the viewer of the content or affected party could approach the court. The court would then have to decide if the content is false, untrue or misleading and whether it was communicated knowingly or intentionally.

Therefore, the affidavit states that it’s not the FCU that would order the take down of content but the court that would take a final call on this.

“However, if such displaying, uploading, publishing, transmitting, storing or sharing causes any harm to anyone or causes public mischief or law and order situation, or endangers national security, appropriate legal proceedings can be initiated and only the court will be the final arbiter about the information/content being fake, false or misleading and whether the same has been knowingly and intentionally communicated.”

Since two fresh petitions have been filed challenging the same amendment to the IT Rules, the matter has been listed for final hearing on July 6. The Solicitor General Tushar Mehta will represent MeitY during the proceedings.