IT Rules 2021 | FCU Meant For Total State Censorship On Anything Govt Doesn't Want People To Know, Discuss, Debate Or Question: Kunal Kamra Tells Bombay High Court

On Monday, the petitioners in pleas challenging the 2021 IT Amendment told the Bombay High Court that the purpose of a government fact check unit (FCU) is not to protect the public from misinformation but to bring total state censorship over anything that the government does not want people to know, discuss, debate or question.

“Under the impugned Rule, it is not the actual falseness or fakeness of the content but the very act of identification of content as such by the government FCU that the intermediary loses safe harbour…It is total state censorship of anything that the government does not want people to know, discuss, debate or question the government on that is the actual purpose of the impugned Rule”, Senior Advocate Navroz Seervai for Kamra contended.

Seervai said that the purpose of the Rule is not to give correct information to the public, but to save the government from criticism in the marketplace of ideas.

Tiebreaker judge Justice AS Chandurkar was hearing 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.

Senior Advocate Navroz Seervai emphasized that no entity, especially the government, should have the authority to define what is true or false. He argued that there is an implicit assumption in the impugned Rule that only the government knows the absolute truth about its affairs. Seervai asserted that no genuinely democratic country has resorted to appointing a government-controlled FCU to arbitrate truth and falsehood, instead opting for mechanisms that uphold democratic values and freedom of speech.

Pointing to existing provisions under the IT Rules, Seervai questioned the necessity of the amendment. He highlighted Section 69A of the IT Act and the blocking rules under that section, along with Rule 3(1)(b)(vii) of the IT Rules, as adequate mechanisms for addressing misinformation without infringing upon Article 19(1)(a) of the Constitution.

Seervai argued that if the amended Rule were compliant with Article 19, it would be redundant, suggesting that its existence implies an infringement of constitutional rights.

He called the government's contention that adding disclaimers to flagged content would be sufficient compliance “delusional”, and "utterly and totally illusionary". He argued that adding a disclaimer would amount to modifying the information, contravening Section 79(2)(b)(iii) and undermining safe harbour. This section provides that the intermediary will have a safe harbour from liability for any third-party information hosted by it if it does not modify the information.

Seervai argued that the amendment strips intermediaries of discretion in their duty to exercise due diligence, leaving the determination of what is fake, false, or misleading solely to the government FCU's subjective determination.

“The impugned Rule works such that the intermediary has no scope to determine whether flagged content is actually fake false or misleading. Failing to take it down after mere identification of flagged content as fake false or misleading by the government FCU is enough to lose safe harbour”, he said.

The proceedings adjourned with Seervai slated to continue his arguments 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