IT Rules Amendment | Will Upcoming Political Campaigns Be Considered 'Business Of Government'? Bombay High Court Asks

“As we are approaching 2024, people will be on a campaign trail and all kinds of things will be said. Suppose one of our online journos questions something said in a public rally, say it is factually incorrect, is that the business of the government or not? Does the govt. say your correction is incorrect, take it down. How is this actually supposed to work I don't understand”, Justice GS Patel asked.

Justice Patel remarked that if the government fact checking unit (FCU) does nothing, that means the political entity was wrong as there is at least one online portal pointing it out. But if it is categorised as 'business of government' it would have to be taken down or the intermediary would lose safe harbour, he said.

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 business of the government. The petitions have been filed by stand-up comedian Kunal Kamra, the Editor's Guild, and Association of Indian Magazines, and were kept for final hearing today.

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 for Kamra contended that the amended Rule denies safe harbour under section 79 of the IT Act, 2001 to social media intermediaries. “It is a way of saying my way or the highway. We will ensure social media covers what we want and what we term the truth by the loss of safe harbour”, he said.

Seervai argued that the intermediaries, being profit-based platforms, are the most vulnerable target of the Rules as it is not in their interest to retain material they have hosted at the cost of losing safe harbour. He contended that freedom of speech under Article 19(1)(a) of the Constitution is violated as regardless of the wording of the Rule, intermediaries will "over censor" if faced with the prospect of litigation. Therefore, safe harbour for intermediaries is very important, he said. He submitted that the government is not supposed to use cover of Article 19(2) to restrict freedom.

Referring to Centre’s affidavit, Seervai said that the government has a false notion that only truth has to be protected. He argued that false speech is also protected under Article 19(1)(a) of the Constitution, except falsehood which can be reasonably restricted.

Seervai said that the Rule violates Article 14 of the Constitution by discriminating between false news about the government and other false news.

The bench remarked that if the consequences of a provision are unconstitutional, it must be struck down irrespective of the high motive behind the provision.

Seervai also contended that the Centre in the affidavit has not given any concrete example of misinformation about the government creating havoc. He said that the government can simply clarify the truth if there is any misinformation about itself.

Seervai submitted that the Centre’s affidavit does not address how the government can act as a judge in its own cause and fails to demonstrate the Rule adheres to principles of natural justice.

Justice Patel asked why an FCU is required if the Press Information Bureau has fact checked for years and works very well according to the Centre. Agreeing with this, Seervai said that the amended Rule fails the proportionality test to restrict freedom of speech and expression.

Justice Patel remarked that the government is trying to stem technology as no one understands the full reach and extent of power of the technology.

“This would not have been necessary in the case of print. You just don't understand what the internet technology will do and how far it will reach...Here is the other problem - governments can't do without the internet. Business depends on it. It's the way they transact. So you find ways to limit it, which is what this exercise is about. The test is whether this is legitimate or not”, he remarked.

The court adjourned the hearing to tomorrow, July 7, 2023.

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 had 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.