The story so far: The Bombay High Court on September 29 reserved its verdict in a batch of petitions challenging the constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules). The Rules permit a fact check unit of the Union Government to identify “fake or false or misleading” online content “related to the business of the Central Government” and demand its removal.
In April this year, the Ministry of Electronics and IT (MEiTY) promulgated the 2023 Rules, which amended the Information Technology Rules, 2021, and allowed the ministry to appoint such a fact-checking unit. Subsequently, Kunal Kamra, a political satirist and standup artist, the Editors Guild of India, and the Association of Indian Magazines filed writ petitions before the Bombay High Court challenging Rule 3(1)(b)(v) of the IT Rules that permit the constitution of such a Fact-Check Unit (FCU).
The petitioners contend that the provision would enable government-led censorship online and empower the government to be the “prosecutor, the judge, and in that loose sense, the executioner” of what constitutes the ‘truth’ online. Defending this provision, the government has argued that the FCU will only notify intermediaries or online platforms that the content they are hosting is fake, false, or misleading, and the intermediaries can choose to take it down or leave it up with a disclaimer. Highlighting that the FCU’s notice is merely advisory, the government submitted that in case a user is aggrieved by the intermediary’s decision, they can avail of a remedy before a court of law, which will be the final arbiter on the matter.
Bringing to an end weeks of arguments on free speech and government censorship, a bench comprising Justices G.S. Patel and Neela Gokhale of the High Court said that it will pass its ruling on the controversial amendment on December 1. The government has apprised the Court that the FCU will not be notified until the judgment is delivered.
During the proceedings, the Court pointed out that the amendment gives “unfettered power” to a government authority in the absence of “guidelines and guardrails.” Some other key concerns flagged by the Court have been noted below.
What does the amendment say?
The amendment brings about significant changes to Rule 3(1)(b)(v) of the IT Rules, 2021, which deals with the responsibilities of intermediaries. They are now under an obligation to make “reasonable efforts” to ensure users, whether limited by rules, regulations, and other policies, do not “host, display, upload, modify, publish, transmit, store, update, or share any information” which is “identified as fake or false or misleading by a fact check unit of the Central government” in respect of “any business of the Central government.” This is a significant departure from the 2021 Rules which only required intermediaries to “inform” users of their obligation not to upload or share “patently false or misleading information.”
Failure to comply with this puts intermediaries at risk of losing the safe harbour protection provided under Section 79 of the IT Act, 2000. The safe harbour safeguard essentially exempts intermediaries from liability for any third-party information made available or hosted by them, provided they observed “due diligence” while performing their obligations under the IT Act.
The amendment, however, does not define the term ‘any business of the Central government.’ The FCU is likely to have four members— a representative from the Union Ministry of Information and Broadcasting, one from the Union Ministry of Statistics and Programme Implementation, a media expert, and a legal expert.
Experts have warned that intermediaries are likely to protect their own commercial interests rather than risk losing safe-harbour protection for non-compliance with the directions of the FCU, even at the cost of curbing their users’ right to freedom of speech and expression.
What are the concerns raised by the High Court?
Although well-intentioned, the Rules prima facie lack necessary safeguards
Early on in the proceedings, in April, the Bombay High Court observed that the amended Rules no matter how well-intentioned, lack necessary safeguards. While refusing to adjourn the matter for ad-interim reliefs, the Court expressed the opinion that prima facie, the Rules do not seem to offer protection to fair criticism of the government like parody and satire.
The bench also pointed out that since the challenge is based on the freedom of speech and expression under Article 19(1)(a) of the Constitution, therefore, the locus of the petitioner Kunal Kamra would not be examined.
Senior Advocate Navroz Seervai, appearing for Mr. Kamra, argued that the intermediaries, being profit-based platforms, will not retain content they have hosted at the cost of losing safe harbour protection. Concurring with this, the Court pointed out that this is the reason why no intermediary company has filed a petition against the Rules.
Will speeches made in upcoming political campaigns be considered ‘business of the government’?
Highlighting the ambiguity surrounding the term “any business of the Central government,” the Court wondered if speeches made ahead of the 2024 Lok Sabha elections would fall within its ambit. It then enquired if publications questioning the veracity of such political speeches would be covered by the amendment, thus empowering the government to identify “fake or misleading news” about itself.
No matter how laudable the new IT Rules are, if the effect is unconstitutional, they must go
In July, the Court remarked that if the consequences of a law are unconstitutional, it has to be done away with no matter how laudable the motive for its introduction was.
The remark was made after Mr. Seervai argued that the amendment violates Article 14 of the Constitution by discriminating between false news about the government and other false news. He further stated that the government is under a false presumption that only truth has to be protected since false speech is also protected under Article 19(1)(a) of the Constitution, except falsehood which can be reasonably restricted.
Press Information Bureau has fact-checked for years, why is the FCU needed now?
Pointing out that the Press Information Bureau (PIB) has been efficiently fact-checking for years, the Court questioned the sudden need for the FCU. For context, the PIB is the nodal agency to disseminate information on government policies and initiatives to print and electronic media. It functions as an interface between the government and the media and also provides feedback to the government on people’s reactions as reflected in the media.
“They are saying FCU [fact-checking unit] is not introduced now, but PIB had existed since long..Where do we find an explanation in replies as to why that structure is inadequate and why you need amendment? Whenever PIB issues a clarification, every news channel and paper carries it,” the Court underscored.
The judges however observed that the government may have come up with this mechanism considering the power and extent of the internet.
‘Misleading’ a very subjective term, what happens to hard-hitting online editorial content?
Referring to undefined terms in the Rules such as “fake, false, and misleading,” the Court outlined that what is misleading for one may not necessarily be misleading for another. Underscoring that such terms are subjective and open to various interpretations, the Court remarked — “Those are the only three criteria [to flag content as false]. We don’t know the business of the Central government. The expression like fake is extremely problematic. One might argue something is false. Falsity puts us in a binary, fake doesn’t even attempt to do that. The word ‘misleading’ in the Rules is an extremely problematic area since it is an opinion.”
Addressing editorial content online, Justice Patel enquired, “In newspapers, if you look at criticism of government figures on the state of the economy. Figures may come from official sources. Analysts may have their own figures. Is it fake news? What happens to editorial content online? You may find any editorial extremely hard-hitting. For example, India’s relations with China.”
Justice Patel also pointed out instances where legal portals publish information regarding court hearings on social media handles and if that could be flagged as potentially misleading. “If a law reporter in court puts out your arguments and summarizes them, how is it not ‘misleading’? Live Law and Bar & Bench put out court hearings. We are in the realm of unknown. I am having difficulty grappling with definitions of those words. I am not bothered about fact-checking. Do these four words have precise definitions?” he enquired.
Elaborating on the improbability of authoritatively determining if a statement is true or false, the Court pointed out that even a civil court is unable to do so and can only pronounce a judgement on the grounds of likelihood or probability.
Why do Rules apply only to digital media, how is news any less ‘misleading’ in print?
The Court questioned why the Rules would exclusively affect digital media, and not its print counterparts. Pointing out the dichotomy in the application of the Rules for the same content in both print and digital media owned by the same organisation, Justice Patel remarked, “How is it less fake, false, and misleading because it is in print? You get an e-paper version of the newspaper. Both say the same thing, what will happen?”
“The fact that they [Central government] are not applying this to print media... does this result in automatic curtailing of their powers on what they can do to online content?” he asked.
Mr. Seervai said that such a distinction could have been made because a newspaper is circulated for a day whereas the reach and permanence of online content is far greater. Appearing on behalf of the Editor’s Guild, advocate Shadan Farasat submitted that there were media houses that published content in print as well as digital media, and the fact that the FCU did not apply to print media made it arbitrary.
Why should FCU monitor only ‘government business’ and not all speculative online content?
During the proceedings, the Court questioned why the monitoring was only limited to government business and not to every piece of information available on the internet. Justifying its decision, the MeitY stated in its affidavit that it would be in the public interest for “authentic information” to be ascertained since people often rely on speculative information available online without waiting for an official government announcement.
Remarking that the internet is a “fertile ground for hoaxes” and misuse, the Court pointed out that everyday messages are received warning people not to use certain apps or not to open any unknown links.
No opportunity given to defend content, violates principles of natural justice
Observing that the powers bestowed upon the FCU were sort of a ‘diktat’, the Court expressed surprise that there is no provision in the Rules that provides an opportunity for an aggrieved intermediary to justify or defend the flagged content. It said that the Rules do not contemplate the issuance of a show cause notice by the FCU which results in an ‘instant knockout’ thereby violating the principles of natural justice.
“I find it remarkable that there is a consequential effect of the Rule, without any show cause notice or defence and that is immediate deprivation of safe harbour. There is no opportunity for justification or being heard,” Justice Patel said.
Can’t bring hammer to kill ant; Rules may be ‘execessive’
Placing reliance on the analogy that one cannot “bring a hammer to kill an ant,” the Bench said that the Rules might be “excessive” and added that it did not understand how the government was given “absolute power” to decide the falsity of the content. There is an assumption that what the FCU says is undeniable, incontrovertible, and the ultimate truth, the Bench further pointed out.
Reiterating his concern about the ‘limitless’ power vested upon the FCU, Justice Patel remarked— ‘“This power identified by the FCU to find out misleading, fake. I am asking whether a court can do it? We are trying to understand this. Who fact checks the FCUs? I want to know what the boundary is. I do not know what the boundary is. Because then I do not know what is being tested under [Article] 19(2).”
Troubling that there is no recourse for user whose content is removed after being flagged by the FCU
Appearing for MeitY, Solicitor General Tushar Mehta argued that social media intermediaries such as Facebook, X (formerly Twitter), and YouTube had three options once content was flagged by the FCU — first, to take it down; second, to not take it down but put a disclaimer that the content has been flagged and three, ignore the communication by FCU.
He submitted that if any person is aggrieved by the content, it could drag the intermediary to court, which would finally decide whether the content is false or not. In a bid to assuage the concerns raised, Mr. Mehta submitted that there was not even the remotest possibility of the FCU prohibiting any humour, criticism or satire unless the same crosses boundaries of decency and becomes abusive or obscene.
The Court then asked why the amendment was required if the FCU cannot compel removal of ‘misleading’ content. To this, deviating from the submissions, Mr. Mehta clarified that that intermediary platforms are required to take some action against the flagged content either by putting up a disclaimer about the FCU’s objection or by taking down the content after verifying it. He said the intermediaries do not have the “third” option of not doing anything once the content has been flagged off by the FCU.
Addressing the Centre’s submissions, the Court said that it was troubled by the fact that the user whose post has been removed or whose account has been suspended by the intermediary platform after being flagged by the FCU, was left with no recourse or remedy.
“That is what is troubling us considering that the user in this entire mechanism will be left with no recourse. If this (remedy) unilaterally goes, then what will happen in that case? There may be or may not be the ‘chilling effect,’ but it still has to be considered,” Justice Patel said.
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