IT Rules Amendment | 'Misleading' Content Very Subjective Term, May Even Include Reporting; What Are The Boundaries? Bombay High Court Asks

The court noted that the only criteria for the government’s Fact Checking Unit (FCU) to flag content online was that it had to be either “misleading, false or fake,” and it had to be related to ‘government business.’

Justice Gautam Patel said, “I seriously want to know what happens to editors and their content. See the wording of the IT Rule - it uses words like fake, false and misleading. Those are the only three criteria (to flag content as false).”

The court found all three expressions problematic and wondered what the source of power to the government’s FCU to identity false content was. “I am not even sure if a civil court can authoritatively pronounce on the truthfulness or falsity of a statement. It can pronounce its decision on the probability of the truthfulness or falsity of such a statement.”

Moreover, calling something “misleading” is subjective, what is misleading for one may not necessarily be misleading for another, the bench underscored.

Justice Patel wondered of Senior Counsel Navroz Seervai’s arguments for petitioner Kunal Kamra when summarised by an online portal could be termed as “misleading.”

“The word 'misleading' in the Rules is an extremely problematic area since it is an opinion. Why is it Mr. Seervai (Counsel for Comedian Kunal Kamra) that your arguments today if put on paper are not misleading ? Or if quoted by Live Law or Bar & Bench are not misleading? That's the test. If a law reporter in court summarizes your argument and sends it out, how is it not potentially misleading. Where is the protection? All three words (false, fake & misleading) [are problematic]. What are the boundaries?”, Justice GS Patel observed.

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 centre’s fact checking unit (FCU) to identify fake or misleading news about business of the government. The petitions have been filed by Kunal Kamra, the Editor's Guild, and Association of Indian Magazines.

The court had on Thursday asked whether upcoming political campaigns will be considered 'business of government' under the amended Rule.

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 Fact Checking Unit (FCU) flags as ‘false’ or ‘misleading’, it will have to defend itself before a court if action is taken.

Courtroom Exchange

Senior Advocate Navroz Seervai cited US v. Alvares to emphasize that even a false statement was protected under freedom of speech guaranteed under the constitution. Justice Patel noted that the amended Rule doesn't limit itself to falsehood. No one knows if the statement is true or false and the FCU will arrive at some sort of determination, he noted.

Considering an example of analysis of economic figures, Justice Patel noted that while the statistics may come from official sources, the analysis may be the writer’s. He asked whether such an analysis would fall under the Rule.

Justice Patel further remarked that the expression ‘fake’ is extremely problematic. “One might argue something is false. Falsity puts us in a binary, fake doesn't even attempt to do that”, he said.

Justice Patel expressed concern over a statute having unbound discretion. He wondered what the limit is on the amended Rule on its own, irrespective of Article 19(1)(a).

Seervai said that government business is restricted to Articles 77 (conduct of business of the Government of India) and 78 (duties of PM to furnish information to the President) of the Constitution. Justice Patel responded that Article 77 covers everything as it uses the expression "all executive action". He also asked Seervai what involves the government but isn’t government business.

Justice Patel asked Seervai to show how intermediaries will lose safe harbour under Section 79 of the IT Act if they don’t comply with the amended Rule.

Seervai pointed out Rule 7 which provides that non observance of the IT Rules will lead to an intermediary being liable for punishment. While submitting that a challenge against Rule 7 is pending for three years in the Supreme Court, Seervai strongly contended that the unamended IT Rules, without the FCU would not have a chilling effect. Giving an example, he said that a scholarly article calling out the economic data of the government may not be taken down under the unamended IT Rules.

Justice Patel concluded today’s hearing by summarizing Seervai’s argument’s –

“In the unamended portion, a person may have a grievance against an intermediary. He may file a criminal complaint or civil suit. The defence can always be he didn't know and safe harbour continue. This amendment changes everything. Rules 7 kicks in and safe harbour is lost if you fail to comply with (take down) statements the Govt's FCU term as false.”

The hearing will continue on Thursday, July 13, 2023.

Background

According to Kamra’s petition, through the new rule Intermediaries (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.

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 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

Appearances for Petitioners – Senior Advocates Navroz Seervai, Arvind Datar, Daraius Khambata, Advocates Gautam Bhatia, Arti Raghavan, Meenaz Kakalia, Aditi Saxena

(Compiled by Amisha Shrivastava)

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