Breaking | Bombay High Court Delivers Split Verdict On Pleas Challenging IT Rules Amendment, Govt To Not Notify 'Fact Check Unit' For 10 Days

The Bombay High Court today delivered a split verdict on the pleas seeking to strike down Rules 3(i)(II)(A) & (C) of the IT Amendment Rules, 2023 which empowers the Central government to establish a fact-checking unit (FCU) to identify any 'fake, false or misleading' information about its business on social media platforms.

Justice Gautam Patel said he has ruled in favour of the petitioners- political satirist Kunal Kamra, Association of Indian Magazines, News Broadcasters of Digital Association & Editor's Guild of India.

Justice Neela Gokhale has upheld the amendment.

The matter will now be placed before a third judge as per the Bombay High Court Rules.

Meanwhile, Solicitor General Tushar Mehta has assured the Court that the FCU will not be notified for another 10 days. Court has granted liberty to the petitioners to move an application before the appropriate forum for seeking any further extension of the protection.

Social media intermediaries like 'X', 'Instagram' and 'Facebook.' would either have to take down the content or add a disclaimer once the government's FCU identifies the content on their platform.

The petitioners claimed the two Rules are ultra vires Sections 79 which safeguards intermediaries from action against third-party content and Section 87(2)(z) & (zg) of the IT Act 2000. Further they violated fundamental rights granting citizen 'equal protection under the law' under Article 14 & freedom of speech under Articles 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 arbitrary censorship of his content as it could be y blocked, taken down, or his social media accounts could be suspended or deactivated.

Prima facie the new amendment to IT Rules 2023 lacks the necessary safeguards to protect satire, the court had earlier observed.

However, the Ministry of Information and Technology has claimed that it would be in public interest for “authentic information” related to the government's business 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” once content on their platform is flagged as fake, false or misleading by the FCU. If a social media or news website continues to host flagged information it will have to defend its stand in court if action is taken.

The intermediary could have lost safe harbor defined under section 79 of the IT Act, which the court would decide.

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 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 (FFM) and argued the only recourse for users is a writ petition.

During the proceedings the issue came up about the broad definition of 'information' according to the IT Act. The SG stated 'information' in the Rules would be confined to “facts”. However, petitioners argued this may amount to the court having to rewrite the legislation, which is not its role.

They emphasized that allowing the government to identify "fake," "fact," and "misleading" information is 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. It only excludes 66 items in List II, it was 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 the 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 appeared 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

Read Justice Patel's Judgment

Read Justice Gokhale's Judgment