Published on: 30 September 2023 at 00:28 IST
The Bombay High Court is set to announce its judgment on December 1, 2023, concerning multiple petitions challenging Rule 3(i)(II)(C) of the IT Amendment Rules, 2023. This rule empowers a government-established Fact Check Unit to identify false, fake, or misleading information about the government on social media platforms.
Consequently, social media intermediaries such as Facebook, Instagram, or others will be required to either remove the flagged content or add a disclaimer at their own risk, as per the Ministry of Electronics and Information & Technology.
The division bench of Justice GS Patel and Justice Neela Gokhale has reserved the pleas filed by political satirist Kunal Kamra, News Broadcasters and Digital Association, Editor’s Guild of India, and the Association of Indian Magazines for final orders.
Court stated “Arguments have concluded. We permit counsels to submit supplementary notes of arguments by October 14. Mr. Mehta [Solicitor General] says the statement not to notify the Fact Check Unit will extend until the pronouncement of the Judgment. The Judgment will be pronounced on December 1, 2023.”
Solicitor General Tushar Mehta clarified on Wednesday that social media intermediaries are not at liberty to take “no action” when content is flagged as fake, false, or misleading by the Fact Check Unit.
The Central Government, in response to Kamra’s petition, submitted a detailed affidavit stating that if a social media or news website continues to host information flagged by the Government’s FCU as ‘false’ or ‘misleading,’ it will have to defend its actions in court.
During courtroom discussions, Senior Advocate Navroz Seervai, representing Kamra, highlighted the lack of remedies available to users if their content is flagged by the FCU as fake, false, or misleading (FFM). He argued that the central government is the sole decision-maker in such cases, and the only recourse for users is through a writ petition.
Seervai also argued that the central government is essentially asking the court to rewrite legislation by limiting the meaning of the term “information” to “facts.”
He stressed that terms like “fake,” “fact,” and “misleading” are overly broad and lead to arbitrariness and discrimination, violating Articles 14 and 19 of the Constitution.
Regarding the interpretation of the term “business of the government,” Seervai contended that it encompasses a wide range of activities, including those listed in the Concurrent List of the Constitution, making it exceptionally broad.
Seervai questioned the classification of the government as a distinct class and argued that the government’s FCU should not have privileges or powers beyond those of other independent FCUs. He asserted that this classification lacks a demonstrable connection to the intended objectives.
Seervai concluded his arguments by stating that the Rule is ultra vires Articles 14 and 19(1)(a) of the Constitution and should be struck down.
Senior Advocate Arvind Datar, representing the News Broadcasters and Digital Association, countered the government’s assertion that the FCU serves in an advisory capacity. He stated, “The Solicitor General 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 questioned the meaning of the FCU’s declaration of something as fake. He inquired, “Is the source fake, is the information fake? What part of it is fake? Can a valid rule operate under such ambiguity?” The bench also wondered what kind of disclaimer intermediaries could use when content is flagged by the FCU.
Datar also raised a scenario in which national newspapers publish content on social media platforms. He asked, “If a national newspaper publishes something, can the government declare it as fake and demand its removal? In that case, how can an intermediary be told that something is fake, false, and misleading, and asked to take it down?” 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 noted a potential inconsistency where content published in print media remains unaffected while the same content posted online is taken down due to FCU identification. He commented, “See, the business of the government 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 government 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 overly broad laws and then request the court to impose restrictions on them. He stated that reading down can only occur when there is a conflict between two statutes.
Datar challenged the government’s assertion that the Rules serve the public interest. He argued 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) primarily addresses issues of order, not the concept of public interest.
Justice Patel questioned how the court could be expected to limit the scope of the word ‘information’ defined under the IT Act and determine precisely what falls under the ambit of ‘information’ under Section 3(1)(b)(5) and how to restrict it to facts.
Justice Patel also noted that illustrations could not be used to decide the vires of a provision. He stated, “We can’t navigate vires and constitutionality based on examples. For example – What’s happening between Canada and India. We cannot use this to interpret the vires of the Rule.”
Datar concluded by stating, “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, representing Editor’s Guild, added, “‘Facts’ about the ‘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.”
The new rule requires social media platforms to make reasonable efforts to prevent users from publishing information identified as ‘false’ or ‘misleading’ in respect of any government business by the government’s Fact Check Unit.