LI Network
Published on: February 1, 2024 at 11:20 IST
Justice Neela Kedar Gokhale of the Bombay High Court, in a divided opinion, has affirmed her support for the 2023 amendment to IT Rules, 2021, which grants the government authority to establish a Fact Check Unit (FCU) to identify and label online content on social media platforms related to government affairs as fake, false, or misleading.
Justice Gokhale dismissed the argument that the amended rule, covering critical opinions, satire, parody, and criticism, renders it unconstitutional. She emphasized that the rule specifically addresses content that is fake, false, or misleading, not genuine opinions or expressions.
In her detailed opinion, Justice Gokhale clarified that content containing critical opinions, satire, or parody, as long as it is genuine and not fake, false, or misleading, does not fall under the purview of the impugned rule. She highlighted the distinction, stating that “fake” refers to something non-existent, eliminating the need for subjective interpretation as the fact itself is non-existent.
Regarding concerns about the vagueness of terms like ‘fake, false, and misleading’ and ‘business of the government,’ Justice Gokhale argued that the government, being the entity with the most accurate information about its operations, is best positioned to provide correct facts. She asserted that the vagueness of the terms alone is insufficient to declare the entire rule ultra vires.
Justice Gokhale further explained that the terms ‘Fake,’ ‘False,’ or ‘Misleading’ should be understood in their ordinary sense. Referring to Section 79(3)(b) of the IT Act, she noted that the rule does not preclude intermediaries from issuing disclaimers rather than taking down flagged content, emphasizing the flexibility of the “reasonable effort” requirement.
Addressing concerns about potential bias, Justice Gokhale highlighted that the FCU has not been notified yet, making challenges under Article 14 premature. She argued that alleging bias against government-appointed FCU members does not automatically strip them of their independence, emphasizing the existence of a grievance redressal mechanism and the courts as the final arbiters.
Justice Gokhale asserted that the impugned rule explicitly targets knowingly false information shared with malicious intent, safeguarding political satire, parody, criticism, opinions, and views unless communicated with ‘actual malice.’ She emphasized that the rule does not directly penalize intermediaries or users without recourse to a court of law.
Concluding her opinion, Justice Gokhale stressed that the rule, despite its potential for abuse, cannot be struck down. Users can seek legal recourse if their fundamental rights are violated, ensuring a balance between citizen rights and the government’s objectives under the law.
The contentious amendment, introduced in January 2023, has faced legal challenges from digital news portals, media associations, and satirists like Kunal Kamra.