Bombay High Court To Pronounce Verdict In Challenge To IT Rules Amendment On December 1, Centre Won't Notify Fact Check Unit Till Then

The Bombay High Court will pronounce on December 1, 2023 its judgement on a clutch of petitions challenging the Rule 3(i)(II)(C) of the IT Amendment Rules, 2023 enabling a government established Fact Check Unit to identify false, fake or misleading information about itself on social media.

Consequently, social media intermediaries like Facebook, Instagram or X will then have to either pull down the flagged content or add a disclaimer at their own risk according to the Ministry of Electronics and Information & Technology.

The division bench of Justice GS Patel and Justice Neela Gokhale reserved the pleas of political satirist Kunal Kamra, News Broadcasters and Digital Association, Editor's Guild of India, and Association of Indian Magazines for final orders.

“Arguments are concluded. We permit counsels to put supplementary notes of arguments in by October 14. Mr. Mehta says statement (not to notify Fact Check Unit) to extend till pronouncement of Judgement. Judgement to be pronounced on December 1, 2023.”

Solicitor General Tushar Mehta on Wednesday clarified that social media intermediaries are not at liberty to do “nothing” about content flagged as fake, false or misleading by the Fact Check Unit.

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 FCU has flagged 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 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 that the central government is the sole arbiter in such cases, and the only recourse for users is a writ petition.

On the matter of reading down the Rule, Seervai argued that by saying that meaning of the term “information” is confined to “facts”, the Centre is 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 scope of the term "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 said.

Seervai questioned the classification of the government as a class unto itself, contending that the government's FCU should not have privileges or powers beyond those of other independent FCUs. He argued that this classification fails to demonstrate a nexus with the objectives sought to be achieved.

Seervai closed his arguments by stating that the Rule is ultra vires Articles 14 and 19(1)(a) of the Constitution and should be struck down.

The senior counsel strenuously argued why the law on freedom of speech enumerated in Shreya Singhal’s judgement cannot be overlooked.

Seervai said there are innumerable instances where the Press Information Bureau has been called out on information they put out as it is incorrect. "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.”

Justice GS Patel asked what it mean when the FCU says something is fake. “is the source fake, is the information fake? What part of it fake? Can a valid rule operate under such type of ambiguity”, the bench asked. Justice Patel also wondered what type of a disclaimer could the intermediary put when content is flagged by the FCU.

Datar also pointed a potential scenario where national newspapers publish content on social media platforms. “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 also noted a potential inconsistency where content published in print media remains untouched while the same content posted online is taken down due to FCU identification. “See the business of the govt is the business of every newspaper. We are leaving people like Mr Kamra aside for a moment. Is there an obligation on the newspaper to print only what the govt approves? Now take the item from print and also post it on their social media platform. After the FCU (the online item is taken down but) the print item remains untouched. That is an inconsistency I don't know how to deal with.”

Datar argued that the government should not be allowed to create laws that are overboard and then ask the court to place restrictions on them. Reading down can only be done when there is a clash between two statutes, he said.

Datar challenged the government's assertion that the Rules serve public interest. He said that public interest is not mentioned in Article 19(2) (reasonable restrictions), public interest is only mentioned in Articles 19(3) to 19(6). Article 19(2) merely addresses issues of order, not the concept of public interest, he said.

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?

Justice Patel noted that illustrations could not be used the decide the vires of a provision.

“We can't navigate vires and constitutionality based on examples. Eg - What's happening between Canada and India. We cannot use this to interpret the vires of the Rule.”

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 for 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.

Background

Through the new rule, 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.

According to Kamra’s petition, 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 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.”

While hearing the petitioners’ arguments in July, the court asked whether upcoming political campaigns will be considered 'business of government' under the amended rule. It also asked if there was any protection for editors or editorial content under the amended Rules. The court questioned how the same news published in print media is any less fake or misleading than in digital medium and expressed concerns about the amended Rules singling out digital content.

(Inputs by Amisha Srivastava)

Case no. – WP(L)/9792/2023

Case Title – Kunal Kamra v. Union of India