IT Rules Amendment | Bombay High Court Asks Why Fact Checking Unit Is Required If It Cannot Compel Removal Of Fake News

Justice GS Patel asked Solicitor General Tushar Mehta, who began arguments for the central government today, to reconsider his submission that a social media intermediary can choose not to take down flagged content.

"See you have the PIB (Press Information Bureau) that has its own Twitter account. If it can do a fact check and publish, then why the amendment? I suspect, that if the FCU says this is false, the compliance by the intermediary is required. Otherwise, it makes no difference...why do you need the amendment unless you are going to compel (intermediaries to remove it)?"

Justice Patel also asked why the second part of the amended Rule 3(1)(b)(v) of the IT Rules (Intermediary Guidelines and Digital Media Ethics Code), 2021, specifying that only false or fake information about 'business of the government' is required.

A division bench of Justice GS Patel and Justice Neela Gokhale was hearing centre’s arguments in response to petitions against Rule 3(i)(II)(C) of the IT Amendment Rules, 2023, which amends Rule 3(1)(b)(v) of the IT Rules, 2021. The amendment allows the FCU to identify fake or misleading news about business of the government. The petitions have been filed by comedian Kunal Kamra, the Editor's Guild of India, and Association of Indian Magazines.

The court in July remarked that the government itself is a participant in the democracy which has to answer citizens’ doubt about itself, and the power of the fact checking unit (FCU) to identify fake news about the government is “difficult”.

The Centre, in a detailed affidavit in response to Kamra’s petition, has submitted that if a social media or news website continues hosting information the Government’s FCU has flagged as ‘false’ or ‘misleading’, it will have to defend itself before a court if action is taken.

Courtroom Exchange

Mehta argued that the term 'Business of the govt' can be defined as whatever the executive does. The Prime Minister's general comments will not be business of the government, he said.

He argued that under the amended rule, fake and false news is resolved, but not criminalized, and an intermediary would lose safe harbour only if it continues to carry content on its website after being informed that it is wrong.

Mehta argued that "misleading" information in the amended rule would mean "patently false" information and cannot be construed any other way. He said that the amended rule is about social media platforms hosting fake or false information. For e.g., someone says government has transferred 150 officers, FCU will say this is false, he said.

To this, Justice Patel asked that whether business of the government is restricted to items mentioned in List I (Union List) of the Seventh Schedule of the Constitution. Mehta answered this in the affirmative.

Mehta agreed with Justice Patel’s summary of his argument that the rule, rather than curbing free speech, limits exercise of power to only content about government business which is false or fake, and this classification must come from a notified FCU.

Mehta clarified that a victim doesn't have to be a user of the social media platform. Anyone who sees the fake content can be the victim. He emphasized that the social media intermediary must “resolve” the issue within 24 hours if a complaint is raised, and not "remove" the flagged content.

Justice Patel asked what will happened if the content flagged by FCU as fake, false or misleading is not taken down.

Nothing will happen unless a victim approaches the court, Mehta answered. He further said that the government can also be an aggrieved party, and the court will be the final arbiter.

He submitted that while earlier social media intermediaries refused to share information of anonymous accounts allegedly posting fake content citing their privacy agreements, under the amended rule, this information can be obtained with a court order once the safe harbour of the intermediary is lifted.

Mehta emphasized that the mandate on social media intermediaries is not for removal of flagged content but for resolution of the dispute. An intermediary can either take down the flagged content, not take down the information, or put a disclaimer, he said.

Justice Patel remarked that the rules are so expansive that anything the FCU dictates as the arbitrator must be done because of the word "shall" and results in violation of Articles 19 and 14.

Mehta argued that the amended rule balances the right of the aggrieved person, who can now approach the court, the right of the social media intermediary, the right of government to inform true facts, and saves the public from false or fake information.

Mehta claimed that the amendment does not criminalise false and fake news but provides a mechanism so that it is internally taken down or looked into. It is the least restrictive form of Article 19(2) (reasonable restrictions) of the Constitution, he contended.

Justice Patel reiterated his earlier concern that the content flagged by FCU as fake or false may not actually be fake or false and the FCU cannot be the arbiter of fake and false.

He said that while a provision can be read down by a constitutional court, the court cannot "read in" any safeguards which aren't present in the provision. He said that while Mehta is constraining the applicability of the rule to "false facts", the rule is actually far wider. How “information” can be read as “fact” in the amended rule, he questioned, opining that information can be opinion as well.

Mehta submitted that American judgments on free speech cited by the petitioners will not apply in this case as the first amendment to the US Constitution provides an absolute right to speech while the Constitution of India specifies restrictions on freedom of speech.

Justice Patel also asked Mehta to reconsider his position that the intermediary has the option of doing nothing if the FCU points something out as false, fake, or misleading.

The court will continue hearing Centre’s arguments tomorrow.

Background

Through the new 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 Kunal 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.

The bench has earlier observed that the new amendment to IT Rules 2022 prima facie lacks the necessary safeguards to protect satire.

The Centre has claimed 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.”

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.

Kamra has also contended 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.

While hearing the petitioners’ arguments in July, the court asked whether upcoming political campaigns will be considered 'business of government' under the amended rule. It also asked if there was any protection for editors or editorial content under the amended Rules. The court questioned how the same news published in print media is any less fake or misleading than in digital medium and expressed concerns about the amended Rules singling out digital content.

Case no. – WP(L)/9792/2023

Case Title – Kunal Kamra v. Union of India

(Compiled by Amisha Shrivastava)