Editors Guild India & Association Of Indian Magazines File Fresh Pleas In Bombay High Court Challenging Amendment To IT Rules

Editors Guild of India, an association to protect freedom of the press as well as the Association of Indian Magazines, comprising of publishers have filed separate petitions challenging the amendment to the IT Rules empowering the Central government to identify fake news about itself on social media.

Rule 3(i)(II)(C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 allows the Government’s fact checking unit to identify “fake or misleading news” about government policies, etc.

A division bench of Justices Gautam Patel and Neela Gokhale tagged the two petitions to the plea filed by Kunal Kamra and adjourned the matters for final hearing on July 6, 2023.

The Central Government also extended its statement till July 10, 2023 not to notify its ‘Fact Checking Unit’ under the amended rules. Without the FCU the Rules cannot operate, the court had observed.

The court directed the Centre to file its reply to all three petitions by June 20 and serve a copy to the other side and permitted the petitioners to file their rejoinders by June 28, 2023.

“Since there are three petitions, we will not permit repeated arguments,” Justice Patel clarified.

The petition filed by the Association of Indian Magazines was drafted with assistance from the Internet Freedom Foundation.

While the petition filed by Kunal Kamra primarily concerns rights of a satirist under Article 19(1)(g), AIM’s plea specifically highlights the Rules’ implications on press freedom and citizens’ right to know.

“Vague and over-broad laws induce a chilling effect on freedom of speech, as citizens lack clarity about whether the content of their speech is prohibited. To avoid violating the law unintentionally, they engage in self-censorship.” the plea states.

It adds that lack of precision in the phrase “false and misleading” will inevitably lead to intermediaries opting to take down content flagged by the government’s FCU rather than running the risk of losing their safe harbour protection. 

The plea states that the Rules have been framed under section 87 (2)(z) and (zg) of the IT Act which pertains to blocking content under section 69A and guidelines to be followed by intermediaries under Section 79(2). But none of the provisions empowers the government to regulate and limit content on the internet. Moreover, the Rules go beyond the permitted grounds to block content under section 69A. “Fake or misleading online content” is not a ground to authorize blocking under section 69A,” according to the plea. 

It therefore seeks to strike down the amendment and a stay in the interim. 

In the previous hearing, the bench had observed that the new amendment to IT Rules 2022 prima facie lacks the necessary safeguards to protect satire and the challenge is prima facie “pressable”.

The Centre, in its affidavit seeking dismissal of Kamra's plea has stated 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.” It has also said that Kamra's plea is premature as the FCU has not been notified yet and no social media intermediary has been directed to remove any content under the impugned Rule.

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.

In his written note, Kamra submitted, while seeking ad-interim stay on the Rule, 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.

Case no. – WP(L)/9792/2023

Case Title – Kunal Kamra v. Union of India

Appearances - Senior Advocates Navroz Seervai and Kapil Sibal for the petitioners along with Advocates Meenaz Kakalia, Aditi Saxena.  

ASG Anil Singh, Aditya Thakkar for the Centre.