IT Rules 2021 | Right To Know Truth Under Article 19(1)(a) Is Violated If Fake And False News Is Not Prevented: Centre To Bombay High Court

On Monday, the central government in pleas challenging the 2023 IT Amendment Rules told the Bombay High Court that not preventing fake or false news would violate the fundament right of the recipient of such news to know correct information and not be misled, which also flows from Article 19(1)(a) of the Constitution.

Solicitor General Tushar Mehta contended that right to know and right to not be misled are equally important as right to freedom of speech and expression under Article 19(1)(a).

“Unless and until you exercise your right of speech and expression in such a way that you communicate the truth and you are prevented from communicating what is utterly false and fake, the recipient's right under Article 19(1)(a) is violated”, Mehta submitted.

Mehta argued that the state has a constitutional obligation protect the citizens' right to not get misled.

“Another man's right of reputation, another man's right of knowing truth, another man's right of not being misled by fake or false news…It is my (government's) constitutional obligation to ensure that the recipient also enjoys his right not to be misled, his right to get true information, and I'll have to balance both competing fundamental rights.”

Tiebreaker judge Justice AS Chandurkar was dealing with petitions filed by comedian Kunal Kamra and others challenging Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The 2023 amendment to the IT Rules, 2021 empowers the government to establish an FCU to identify fake, false, and misleading information about its business on social media.

The petitioners concluded their argument in April this year contending that the purpose of the FCU is to bring total state censorship on anything government doesn't want people to know, discuss, debate or question. Petitioners have also pointed out that there is no provision for the government fact check unit (FCU) to fulfil its purported intent of keeping the citizens informed.

Today, Solicitor General Mehta began his arguments by asserting that the goals of the impugned Rules could potentially be achieved under Section 69A of the IT Act, which pertains to blocking public access to information. However, he noted that utilizing Section 69A might be disproportionate and overly harsh.

Mehta submitted that if the FCU designates content as fake and the intermediary refuses to remove it or add a disclaimer, the only consequence is that the aggrieved party could bring the intermediary to court. In such a scenario, the intermediary would have the defence that the content is not fake. Mehta maintained that the government is not the final arbiter of truth in these matters.

Addressing the concept of fact-checking, he submitted that the government would simply flag content as fake, false, or misleading based on its records, and the decision to act on this information would rest with social media intermediaries.

Mehta also mentioned that intermediaries were consulted during the formulation of these rules. He pointed out that the intermediaries have not challenged the impugned rules could and contended that only intermediaries could be considered aggrieved by the impugned rules as there is a possibility of loss of safe harbour.

He said that the poster of the content cannot be aggrieved by the impugned amendment. The poster of content would not be in any better or worse position due to the rules as there never was any protection available to the poster in the first place, Mehta submitted.

Mehta defended the rules as a response to the uproar from victims of fake news, and stated that the impugned rules aim to protect the public by preventing the spread of fake news that could incite cognizable offenses.

He distinguished between the effects of false information on private individuals and on the government, arguing that the governmental false news must be treated at a different pedestal due to its potential impact on public order.

Addressing petitioners' arguments about the chilling effect of the impugned rules on free speech, Mehta contended thatfbaan there should be a chilling effect on fake and false information.

“The only argument they make is this will have a chilling effect (on freedom of speech and expression). Chilling effect can't be a ground for posting a fake or a false information. If it is chilling effect, then it should be chilling effect. In a medium of this nature with such a width and breadth, where it reaches every corner of the world in seconds, you can't put false or fake news”, Mehta contended.

The court will continue hearing the matter tomorrow at 2:30 PM.

Background –

Through the impugned 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.

Chief Justice DK Upadhyaya assigned the matter to Justice AS Chandurkar after the division bench of Justice Gautam Patel and Justice Neela Gokhale delivered a split verdict in the writ petitions challenging the amendment. While Justice Patel held the Rule should be struck down in its entirety, Justice Gokhale held the Rule was intra vires. The judgements were divergent on all aspects.

The Supreme Court last month stayed the Union's notification of the Fact-Check Unit (FCU) under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 (IT Amendment Rules 2023). The stay shall operate till the Bombay High Court finally decides the challenges to the IT Rules amendment 2023.

The Supreme Court set aside the March 11 order of the Bombay High Court refusing to stay the implementation of the Rules and the consequential order allowing the Centre to notify the FCU.

Case Title – Kunal Kamra v. Union of India