LI Network
Published on: January 15, 2024 at 21:05 IST
In a recent development, the Bombay High Court has deferred its decision on the challenge to Rules 3(i)(II)(A) & (C) of the IT Amendment Rules, 2023.
These rules mandate social media intermediaries like ‘X’ to exert “reasonable efforts” in preventing users from disseminating information related to government affairs that has been identified by the Fact Check Unit as false, fake, or misleading.
A division bench, comprising Justices Gautam Patel and Neela Gokhale, is currently reviewing pleas filed by political satirist Kunal Kamra, the Association of Indian Magazines, News Broadcasters of Digital Association, and the Editor’s Guild of India. The court is expected to announce its judgment on January 31, 2024.
The petitioners argue that Rules 3(i)(II)(A) & (C) are beyond the scope of Sections 79 and 87(2)(z) & (zg) of the IT Act 2000 and infringe upon fundamental rights protected under Article 14, 19(1)(a), and 19(1)(g) of the Indian Constitution.
Kunal Kamra, the petitioner, claims to be a political satirist who relies on social media platforms to share content. He expressed concern that these rules could lead to arbitrary blocking or removal of his content, or suspension and deactivation of his social media accounts.
The bench had previously noted that the recent amendment to IT Rules 2023 lacks necessary safeguards to protect satire. However, the Ministry of Information and Technology argues that validating information through fact-checking by a government agency (FCU) and disseminating authentic information would be in the public interest.
During the proceedings, Solicitor General Tushar Mehta clarified that intermediaries like Facebook, X, and Instagram are obligated to address content flagged as false, fake, or misleading by the Fact Check Unit. Failure to act could result in the loss of safe harbor protection under Section 79 of the IT Act, subject to court review.
In response, the petitioners argued that intermediaries have an “illusion” of choice once content is flagged by the government. They highlighted that anything short of taking down content, including adding disclaimers, opens intermediaries to potential legal action.
The lack of remedies for users whose content is flagged as false was emphasized, with the central government being the sole arbiter and users having limited recourse.
The Solicitor General clarified that the term ‘information’ in the rules is confined to “facts.” However, the petitioners argued that such a restriction would require the court to rewrite the legislation, and terms like “fake,” “fact,” and “misleading” are overly broad, leading to arbitrariness and discrimination.
The Court also deliberated on the broad interpretation of the “business of the government” within Rule 3(i)(II)(A), covering a wide range of activities. The petitioners stressed the importance of protecting freedom of speech, citing instances where government agencies themselves have disseminated incorrect information.
Senior Advocate Arvind Datar argued that the Fact Check Unit is not advisory but issues binding directives. He questioned the disparity in regulation between traditional media and social media intermediaries.
Justice Patel questioned the Court’s ability to limit the scope of the term ‘information’ under the IT Act and its applicability to facts. In conclusion, Datar urged the Court to strike down the rule, emphasizing the need to protect freedom of speech as a cherished right.