[IT Rules Amendment] Differentiating Fake News About Govt And Other Forms Of Fake News Arbitrary, Violates Article 14: Kunal Kamra In Bombay HC

Users who routinely comment or engage with subjects relating to the Central Government’s business face potentially devastating consequences if the MeitY’s fact checking unit (FCU) is notified, comedian Kunal Kamra stated in written submissions before the Bombay High Court.

The note was tendered yesterday wherein Kamra sought an interim stay on the IT Amendment Rules 2023. The Rules expect social media intermediaries to take reasonable efforts to ensure fake news about the government identified by the FCU isn’t published.

While the Union contended the FCU is yet to be notified, Kamra’s note asserted that content created and shared on social media today would continue to be available even after publication of the FCU notification, and the government could want such information blocked. Therefore, the absence of a notification was immaterial for urgency.

“Users such as the Petitioner who routinely comment on and engage with the subjects that relate to the business of the Central Government face potentially devastating (and irretrievable) consequences if their accounts were to be suspended or potentially deactivated upon the notification of (and subsequent action by) the fact check unit,” the submissions state.

Kamra approached the court last week challenging Rule 3(i)(II)(C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.

The Rule subjects citizens who share information regarding the conduct of the Central Government and its personnel to civil consequences, should they not guarantee the truth of their assertions.

“Establishing “truth” in a system where the Central Government has both monopoly over information and over the determination of truth is wholly arbitrary, antithetical to the freedom of speech and expression and would have a chilling effect on the freedom of speech. On this ground alone, the Impugned Rule ought to be struck down,” the submissions state.

After a brief hearing on Monday, the High Court adjourned the matter for a hearing on Thursday and observed prima facie the amendment did lack safeguards.

The Rules are a violation of Articles 14 and 19 of the Constitution of India and manifestly arbitrary as it would entail the government acting as a prosecutor and judge in its own case, Kamra states.

Violation of Article 14

The written note states that there is an inherent classification in the Rule between speech that contains fake/false or misleading information about the Central Government as opposed to all other forms of fake/false or misleading information. Such a discrimination is “flawed,” “discriminatory.”

There is no rationale for the government to be a distinct class as it is in a better position than any other person who is a target of fake news.

Grievance Redressal Mechanism

The Central Government (by handpicking and designating a fact-check unit), and also the forum where persons aggrieved by decisions of this FCU, functions as a judge in its own cause in determining what content is “fake, false and misleading,” the notes states.

“The Rule does not afford the user a right to a hearing before rendering a decision that their information is “fake, false or misleading”. This is antithetical to the most fundamental notions of natural justice,” according to the submissions.

Significantly Kamra argues that the Rule doesn’t state there should be a reasoned order before the FCU brands a particular item as fake, which is against natural justice. Neither could a social media intermediary’s Grievance Redressal Officer nor the appellate authority override, correct or contradict the FCU, the note adds.

Kamra expresses the helplessness of a user whose content has been taken down without a reasoned order. “Content would already have been taken down, and a citizen would be confronted with a situation of having to justify their speech, without knowing the reasons for the government restricting their speech act,” he contends.

The matter will now be heard on Thursday.