'How Is News Any Less Fake Or Misleading In Print?' Bombay High Court Expresses Concerns About IT Rules Singling Out Digital Content

The Bombay High Court on Thursday expressed concerns about the distinction between online and print media under the amendments to the IT Rules, 2021 which empower a government fact-checking unit (FCU) to identify any 'fake, false or misleading' information about the central government and ask intermediaries such as Twitter and Facebook to take down the content.

Pointing out that this rule would exclusively affect digital media, and not its print counterparts, Justice GS Patel asked:

"How is it less fake, false, or misleading merely because it is in print? You get an e-paper version of the newspaper. Both say the same thing. What will happen? What is it the government intends to do? Is it going to not deal with something which it is available in both print and online? Does the fact that they are not applying this to print media result in an automatic curtailment of their powers on what they can do to online content? If someone takes a picture of a newspaper and posts it on Twitter, Twitter will face a takedown notice but will nothing be done to the newspaper?"

A division bench of Justice GS Patel and Justice Neela Gokhale was hearing a batch of petitions challenging Rule 3(i)(II)(C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 allowing the FCU to identify fake or misleading news about the business of the government. The petitions have been filed by stand-up comedian Kunal Kamra, the Editor's Guild, and the Association of Indian Magazines.

During the hearing today, the bench also voiced its doubt about the 'assumption of binary of true/false' in the amended rule. Justice Patel observed, "There is an assumption of binary which we know traditionally from art and literature, is a matter of perception. 'Misleading' is possibly the most misleading." The judge also noted that on their own, the words 'fake', 'false', or 'misleading' with a provision allowing the FCU to unilaterally identify such content posed a problem. "They themselves are not the problem as the unamended rules also have them. The problem is the connection of these words with the authority of the FCU to identify unilaterally such news," Justice Patel said. 

Last week, the court had 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, rhetorically asking the petitioner’s counsel if his arguments published on news portals like LiveLaw could be termed as 'potentially misleading' under the very rules he had challenged.

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 which the government’s fact-checking unit flags as ‘false’ or ‘misleading’, it will have to defend itself before a court if action is taken.

Courtroom Exchange

Senior Advocate Navroz Seervai, for comedian Kunal Kamra said, "it is the [FCU's] power to decide within this mythical binary of false and true which is the problem." To illustrate this point, he used the example of satire, saying, "The fundamental trick of satire is to hoodwink the public to believe what is actually false to be true and then they realise they have made a fool of themselves and laugh and go home. This [rule] will completely destroy satire."

He argued that any restriction to a fundamental right has to come as a result of a legislative process, and as such, the fundamental right to the freedom of speech cannot be restricted by Rules framed by the executive. He said that the eight heads for restriction of freedom of speech under Article 19(2) of the Constitution are exhaustive and they do not include an attack against the Government. He also argued that even if the objective of the rule were legitimate, the carving out of the central government as the sole member of a class, information about which will be subject to a process of verification, would amount to an 'illegitimate and invalid' class legislation. He said:

"The government must justify why it is a class on its own. But the government offers no justification as to why any fake news regarding the business of the central government is on a different footing. It provides no evidence to show that there is more speculation regarding the government. There is no explanation for why it doesn't apply to state governments, statutory authorities, etc."

Justice Patel weighed in on this issue, asking why, as per principle of in loco parentis, the fact-checking unit will only verify news regarding the business of the government. "Every second day, people get messages with fake information - 'don't open the app or it'll explode', etc. It's harmless, so are they correcting this also?", he asked.

Seervai also submitted that no notice is proposed to be given to the party affected by the FCU when it concludes that some information about the central government is false or misleading, nor any reason for the conclusion will be disclosed. Thus, the Rule violates both the principles of natural justice, he argued. "It violates the principle that no man shall be a judge in his own cause as well that which requires the other side to be heard as well."

Advocate Shadan Farasat, appearing for the Editor's Guild, argued that the impugned rule infringe both the freedom of speech and expression under Article 19(1)(a) of the Constitution, and the freedom of occupation, trade, or business under Aticle 19(1)(g). On the issue of 'safe harbour', Farasat said, "The effect of the rule is that if the government disagrees with an editor's content, the safe harbour will automatically be lost."

Justice Patel agreed:

"Under Rule 7, it is an instant knockout if the FCU's directive is not complied with. There is no opportunity to contend why one should not lose safe harbour. Automatically, the safe harbour is lost...I find it remarkable...There is no opportunity to justify why non-compliance should be excused."

The judge also pointed out that this rule would affect digital media, saying, "This amendment is limited to digital media. Could you have done this with print? Many have the same content in print and online. Can the same content go to print but be called fake, false, or misleading when posted online? Fake news is about the content, not the medium." He asked, "How have they addressed the divide between online and print media?"

Seervai answered, "The government is harping on the reach and permanence of online content. I think this distinction is made because a newspaper is [circulated] for a day."

Farasat contended that the distinction made between print and online medium was an attempt to 'hit' circulation, since digital medium has emerged as the primary medium through which news is consumed nowadays. "They know if they bar digital medium, the circulation will go down substantially. But, Article 19(1)(a) guarantees not only the right of content but also that of circulation. This freedom is both qualitative and quantitative according to the Bennett Coleman judgement of the Supreme Court." Allowing the same content to be disseminated in print but not online is 'straightaway arbitrary', Farasat insisted adding it violates Article 14 of the Constitution.

In response to Justice Patel's questions about whether this rule applied to the website of newspapers, Farasat said, "Rule 3 applies to all intermediaries. Any newspaper with a website will be an intermediary. Only those newspapers that are available only in print will not be considered an intermediary."

"How is it possible that for the same content, you are an intermediary with respect to digital news but not in print?" Justice Patel asked.

Farasat replied, "The digital arm of the newspapers that host content online will be hit by this rule."

"So even your own website is hit by this rule? Not just the social media websites?" the judge asked again.

The effect, Farasat further told the bench, "Will be to give the loudest mic to conformist voices." What will be in wide circulation will be news that has received the government's seal of approval and the masses who consume news through digital medium will be deprived of any other news, he said. He argued that the impugned rule would impact political speech and dissent which are protected under Article 19(1). By placing an embargo on such speech, the State is prohibiting any genuine assessment of itself and its conduct, he said. "The functioning of the government forms the basis on which the voters are expected to vote," the counsel said.

Justice Patel added, "Implicit in the right to vote is the right to informed choice. You can't have that without Article 19(1)(a). Each right in 19(1) is essential to participate in democracy. Anything that poses a threat to the exercise of Article 19(1), outside of the exceptions laid out in Articles 19(2) to 19(6) is ultra vires."

Agreeing with this, Farasat submitted:

"The core of Article 19(1)(a) is not to exercise the right with respect to fellow citizens, although it includes that as well. The core is to exercise the right against the State. The right to dissent is the essence of a vibrant democracy because it helps the government to improve its governance. This dissent is precisely what is sought to be left out of circulation...The right not to be told what is the truth by your government is what differentiates citizens from subjects. If we have to continue as fully informed, deliberative, engaging citizens in a democratic polity, it is important that this rule is struck down."

Other than this, Farasat stressed that the threshold for proportionality was very high, and the amended Rule did not satisfy it. If it were given effect to, the counsel vehemently argued, it would lead to 'state-sponsored informational authoritarianism'. "The ethical responsibility of a journalist is to present all versions of a story...What they seek to do by this rule is to insist that 'their version is the only version'. It has an effect on both the consumers of news and the disseminators of news. There are no procedural safeguards...Anyone can sue the intermediary for anything. It is a gun to the intermediary's head. They are going to comply", Farasat argued

Farasat argued that the impugned Rule violates Article 19(1)(g) because online news providers would have to choose between continuing the business and violating the ethical directive of a journalist of providing both sides of the story adequately. "So, the effect of the amended rule is that the journalist becomes the spokesperson for the government," he told the bench.

The hearing will continue tomorrow.

Background

According to Kamra’s petition, through the new rule Intermediaries (social media platforms) are supposed to make reasonable efforts to 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.

Kamra said he is a political satirist who relies on social media platforms to share his content and the impugned rules could potentially 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 the 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.

Case no. – WP(L)/9792/2023

Case Title – Kunal Kamra v. Union of India

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