Breaking | Bombay High Court Defers Verdict On Validity Of IT Rules Amendment; Govt To Not Notify 'Fact Check Unit' Till Then

The Bombay High Court has deferred its verdict on challenge to Rules 3(i)(II)(A) & (C) of the IT Amendment Rules, 2023 that mandate social media intermediaries like 'X' to make “reasonable efforts” to prevent users publishing information on the government's business- identified by Fact Check Unit as fake, false or misleading.

A division bench comprising Justices Gautam Patel and Neela Gokhale is seized of the pleas filed by political satirist Kunal Kamra, Association of Indian Magazines, News Broadcasters of Digital Association & Editor's Guild of India. The judgement is likely to be pronounced on January 31, 2024.

The petitioners claimed the two Rules are ultra vires Sections 79 and 87(2)(z) & (zg) of the IT Act 2000 and violate fundamental rights under Article 14, 19(1)(a) & 19(1)(g) of the Constitution of India.

Petitioner Kunal Kamra claimed he is a political satirist who relies on social media platforms to share his content and the Rules could 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 2023 prima facie lacks the necessary safeguards to protect satire.

However, the Ministry of Information and Technology has claimed that it would be in public interest for “authentic information” to be ascertained and disseminated after fact checking by a government agency (FCU) “so that the potential harm to the public at large can be contained.”

During the proceedings, Solicitor General Tushar Mehta clarified that intermediaries like Facebook, X, Instagram etc are not at liberty to do “nothing” about content flagged as fake, false or misleading by the Fact Check Unit. If a social media or news website continues hosting information the Government's FCU has flagged as 'false' or 'misleading', it will have to defend itself before a court if action is taken. The intermediary could lose safe harbor defined under section 79 of the IT Act. But the final arbiter was the court.

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 Gautam Bhatia argued.

Senior Advocate Navroz Seervai for Kamra pointed out the lack of remedies available to users if their content is flagged by the FCU as fake, false or misleading and argued that the central government is the sole arbiter in such cases, and the only recourse for users is a writ petition.

During the proceedings, the SG stated that the term 'information' in the Rules would be confined to “facts”. However, Seervai argued this was essentially asking the court to rewrite the legislation, which is not its role. He emphasized that terms like "fake," "fact," and "misleading" are overboard and result in arbitrariness and discrimination, violating Articles 14 and 19 of the Constitution.

Regarding the Rule being confined to the "business of the government," Seervai argued that it encompasses a wide range of activities, including those listed in Concurrent List of the Constitution, which includes a residuary entry 97, making it exceptionally broad. “Entry 97 includes everything under the sun, except for 66 items in List II,” Seervai had argued.

The senior counsel strenuously argued why the law on freedom of speech enumerated in Shreya Singhal's judgement cannot be overlooked. Seervai submitted instances where the Press Information Bureau (PIB) has been called out for putting out incorrect information to imply the Government may not always disseminate true and correct facts. "How it throttles information that embarrasses the government."

Giving an example of how this would play out, Seervai said, “WHO may say 50 lakh people died of Covid. India says only 5 lakh died. FCU says what WHO claims is false. See how governments will be shielded? "

Senior Advocate Arvind Datar for the News Broadcasters and Digital Association countered the government's assertion that the FCU serves in an advisory capacity, “The SG tried to argue that the FCU is an advisory. It's not a travel advisory. It is a binding dictat and order.”

Giving an example, he said “A national newspaper publishes something, can the government make them say this is fake and take it down? So then how can an intermediary be told this is fake, false and misleading, take it down”, Datar asked. Datar argued that if TV news and online channels cannot be regulated in this manner, the same principle should apply to social media intermediaries.

Justice Patel wondered how can the court be expected to limit the scope of the word 'information' defined under the IT Act, what precisely is the ambit of 'information' under 3(1)(b)(5) and how to limit it to facts?

Datar finally submitted, “The Rule cannot be read down, it has to be struck down. This tumor has to be incised and removed. The freedom of speech is the most cherished right, please protect it.”

Advocate Shadan Farsat appearing for the Editor's Guild submitted, “'Facts' about 'business of the government' even when structured narrowly have so many interpretations. There are different interpretations of the government and others on the number of covid deaths, sufficiency of oxygen, farmers deaths.

Case no. – WP(L)/9792/2023

Case Title – Kunal Kamra v. Union of India