Intermediaries Bound To Take Action On Content Flagged By Fact-Check Unit, May Not Take Down But Put 'Disclaimer': Centre To Bombay HC

The Solicitor General representing the Ministry of Electronics and IT on Tuesday clarified that an intermediary must either pull down information flagged by the government’s Fact Check Unit or put a disclaimer.

The intermediary was not at liberty to do “nothing” about content flagged as fake, false or misleading by the government, SG Tushar Mehta added, addressing a query raised by the Bombay High Court on Tuesday.

The division bench of Justice Gautam Patel and Neela Gokhale was hearing a batch of petitions challenging the new Rule 3(i)(II)(C) of the IT Amendment Rules, 2023. The Rule allows formation of a government Fack Check Unit 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.

Arguments

On Wednesday, the SG submitted that the court was the final arbiter of the truth and not the government, and only the court could decide if the intermediary had lost safe harbor defined under section 79 of the IT Act.

However, the petitioners in their rejoinder claimed that intermediaries only have an “illusion” of choice once something is flagged by the government. Because anything short of taking down content, even putting a disclaimer, opens up the intermediary to being sued, Advocate Gutam Bhatia argued.

Senior Advocate Nawroz Seervai for Kamra said “safe harbour” that protects an intermediary or online platform is really meant for the user.

“The intermediary doesn’t care so long as they have their safe harbour and then can continue making their profits. Safe Harbour, is not for the protection of the intermediary, it is for the protection of the users and for the widest dissemination of news opinion, criticism, questioning, factually holding to account the government. That’s the life guard of democracy and free society.”

SG started his arguments on Wednesday by answering two questions put by the court on Tuesday.

He said that a person aggrieved by content on the internet can first approach the intermediaries in house self-regulatory Grievance Redressal Mechanism under Rule 3(2) of the Rules.

The intermediary can resolve this grievance by taking down the content or putting a disclaimer at its own risk. Either aggrieved party can then approach the Appellate Grievance Redressal Mechanism (a government body). However, Mehta still asserted that the final arbiter would be the court. Non observance of the rules opens up the intermediary to punishment and even penal action.

“When the intermediary is before the Court at the instance of a victim, he will have to, under Rule 4(2), divulge the identity under the court’s order and claim immunity under section 79 leaving it to be decided by the Court both about his immunity and the dispute between the victim and the sender.”

He added that the same procedure would apply for government business. “In case of any fake or false content about the Central Government, the same procedure would apply. In case the intermediary puts the disclaimer, he will be in a position to plead “due diligence” and “reasonable effort” on his part before the court.”

Regarding the second question about the wide definitions of “data” and “information” in the IT Act the SG said it should only be only in the context of information which can be construed as false or fake.

“No provision of Part II deals with any expression of opinion, views, comments, humour, satire or criticism as it only deals with the content which is fake, false or misleading due to it being fake or false,” the SG clarified.

After the SG gave a list of various petitions pending in different courts against the rules, the High Court observed, “The fact that there are so many petitions pending is an indication of how deeply polarising it is.”

The SG emphasized that Shreya Singhal’s judgement wherein the Supreme Court struck down section 66A of the IT Act wouldn’t be applicable as that was a penal provision.

The Court highlighted the role of subordinate courts in ascertaining the truth in the form of trials. “What is truth? And this is why we have lower courts who can give us some idea about what happened. Now (under the rules) someone (FCU) just pronounces. If you see words like fake, false and misleading in the rule... The question is not whether a statement cannot be false or misleading but who gets to decide this.”

The court asked if the chilling effect of the rules was a mere speculation. In response the petitioners asserted that chilling effect was always a “looking forward” principle.

Advocate Seervai insisted the SG was trying to add additional restrictions which didn’t exist in Article 19(2). “The market place of ideas was entirely omitted. The truest test of finding the truth is the market place of ideas and not the government or authority or some extremist group trying to throttle it.”

The court is likely to complete arguments on Friday.