Bombay High Court Seeks Centre’s Reply on Plea Challenging IT Rules Amendment 2023

Bombay High Court Seeks Centre’s Reply on Plea Challenging IT Rules Amendment 2023

The Bombay High Court by its division bench of Justices Gautam Patel and Neela Gokhale has directed the Centre to file its reply on a plea challenging the Centre’s notification to establish a fact-checking unit to cross-check and verify any-and-all information about the government present on social media platforms.

The plea was moved by stand-up comedian Kunal Kamra challenging the new amendment to Information Technology Rules that empower the Central Government to identify 'Fake News' about itself in the social media.

On 6th April 2023, the Ministry of Electronics and Information Technology (MeitY), Government of India, had notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.

The Rule 3(i)(II)(C) of the 2023 amendment empowers MeitY to notify a fact check unit of the Central Government that will identify fake or false or misleading online content in respect to any business of the Central Government.

Resultantly, this amendment entails the social media sites (Facebook, Twitter etc.) and telecom service providers to inform the user not to host, display, upload, modify, publish, transmit, store, update or share any information in respect of any business of the Central Government, that is identified as fake or false or misleading by such fact check unit.

In his plea, Kamra condemned the rules as being arbitrary in nature and violating the principles of natural justice.

“In effect, the Rules require social media intermediaries to censor or otherwise modify content that relates to the Central Government, if a government- mandated fact-checking body directs them to do so…. the Impugned Rules are manifestly arbitrary, as they entail the central government acting as a judge and prosecutor in its own cause, thus violating one of the most fundamental principles of natural justice,” the plea reads.

The plea further stated that the impugned rules are over-broad, vague, and constitute unreasonable restrictions to freedom of speech and expression under Article 19(1)(a) of the constitution, inter alia, by making the state the sole arbiter of truth or falsity of speech.

During the hearing, Senior Advocate Navroz Seervai for Kamra submitted that the High Court stayed a “much less chilling” Rule in 2021.

In 2021, the High Court, had passed a stay order on Rules 9(1) and 9(3) of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 which mandate digital news media and online publishers to adhere to the “Code of Ethics” prescribed by the Rules.

The impugned Rule violates numerous Supreme Court judgements including Shreya Singhal v. Union of India, Seervai contended.

While summarizing the challenge, Justice Patel enquired, “there may be many interpretations of a certain thing or statement but that doesn't make it false or fake...Can you restrict, restrain or curtail outside the parameters specified?”

Seervai argued that the Rule was neither reasonable nor in public interest. He submitted that if the objectionable thing was repeatedly published, which happens automatically, the user’s account can be deactivated as one of the effects of the Rule.

Seervai contended that the career of people who survive only on social media platforms is finished due to the Rule.

Per contra, Additional Solicitor General Anil Singh asserted that everything would come to effect only once the notification for Fact Checking Unit is published. Hence, there is no urgency.

To which, Seervai claimed that once content is published, the notification for fact check unit can have a retrospective effect on that content.

The bench avowed that it would consider everything urgent when it comes to freedom of speech.

Accordingly, the High Court ordered the Ministry of Electronics and Information Technology to file by April 19 a detailed affidavit on the reasons behind the proposal to set up the fact-checking unit and the background of the rules under which the proposal was moved.