Justice Gautam Patel Holds IT Rules Amendment Violate Article 19(1)(g), Says It Pushes Out News From Digital Cycle While It Continues In Print

Justice Gautam Patel of the Bombay High Court held that the proposed Fact Check Unit under the 2023 amendment to the Information & Technology Rules 2021 directly infringed fundamental rights under Article 19(1)(g) due to the differential treatment between online and print content.

Article 19( 1)(g) of Constitution of India deals with freedom to practice one's profession or business and Article 19 (6) enumerates the nature of restriction that can be imposed.

“The decisive test must surely be that if the material in print cannot be subjected to FCU checking and compelled deletion, there is no reason why, merely because the exact same material also appears online it is susceptible to unilateral determination of fakeness, falsity or being misleading.”

Justice Patel and Justice Neela Gokhale issued a split verdict on the 2023 amendment to the IT Rules on Wednesday in a clutch of petitions filed by satirist Kunal Kamra, the Editors Guild of India, Association of Indian Magazines and an interim application by News Broadcasters and Digital Association.

In his judgement, Justice Patel agreed with the petitioners that social media users include news outlets and journals. Some of these may have print editions like the Times of India and Hindustan Times while some may operate only in the online realm like Live Law and Bar and Bench.

But the Rule only applies to the online content. “Any particular 'information' does not become fake, false or misleading only because it is digital. Examples can be endlessly multiplied,” Justice Patel noted.

He added that “India's economic growth, poverty levels, education, health, drinking water, even internet freedom are all fertile grounds for opposing views and criticism. If this critical material is in print, it cannot be censored — at least not by this Rule. But the very same material only because it is also in digital form is liable to be suppressed as fake, false or misleading.”

Justice Patel pointed out the difference in numbers of Covid-19 deaths reported by the government and those reported by various news publications.

“What would happen to reports on figures and statistics on fatalities and vaccinations during the COVID-19 pandemic? The government had one set of figures. Others reported differently in print. And they did so online as well. Would the online content be 'fake, false or misleading' but the identical content in hard copy not?”

Justice Patel added that the actual extent of internet/social media presence of a publication or journal is immaterial. “After all, the fundamental rights are to protect the minority not the other way around.”

The Advocate argued that “free speech and the freedom of the press do not exist in a vacuum. The press, the fourth estate, needs infrastructure to generate and disseminate news.”

It was further argued that while “the press must report all sides” the government's Fact Check Unit - that would identify fake, false and misleading content on the government's business – wanted only the government's views to be presented.

On the business of social media news, Justice Patel said “Social media has become the primary news medium for the last half-decade or so. There is some material to show a precipitous decline in hard-copy newspaper readership in India. That in turn means a stagnation or decline in advertising revenue. Social media is thus the primary driver for news dissemination. The impugned Rule targets social media content even for news outlets that have a print media (and about which nothing is or can be proposed). There is, thus, a direct infringement of Article 19(1)(g). The impugned Rule 'pushes out of the news cycle' the digital version of any reportage with which the Central Government disagrees.”

Appearances – Senior Advocate Arvind Datar, Shadan Farsat, Gautam Bhatia

Case No - WRIT PETITION (L) NO. 9792 OF 2023

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