After two days of hearing on Central government’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, the Bombay High Court on Thursday reserved the order on interim application filed by satirist Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines and News Broadcast and Digital Association seeking stay on the notification for formation of Fact Check Unit (FCU). The rules empower the Centre to establish an FCU to identify fake, false, and misleading information about the government’s business on social media platforms.
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After hearing arguments of both sides for two days (Wednesday and Thursday), Justice A.S. Chandurkar has reserved the interim application.
On Wednesday, senior advocate Navroz Seervai on behalf of Association of Indian Magazines said that the division bench that delivered a split verdict in a petition challenging the 2023 amendment to the IT rules agreed that the amended rule as it stands violates and has a chilling effect on free speech.
Solicitor General Tushar Mehta in his argument said, “I did make a statement [not to notify FCU], it is right. But now we have a position where we have a split verdict, and I would be failing in my duty to the people at large if I continue my statement for few individuals to have that comfort of no chilling effect. It would not be fair or proper to deprive the people at large of knowing the truth, especially when intermediaries are not before the court, private individuals are.”
Advocate Seervai presenting the case of petitioners stressed upon numerous points that violate human rights under the rules. “The split verdict by the division bench only represented an opinion and not a judgment, implying that the Union of India was obligated to maintain its stance until a final decision was made. Failing to grant interim relief would render the petition ineffective and deny the petitioner fair recourse. The FCU, ostensibly aimed at intermediaries, would inevitably impact users, constituting a direct assault on their rights.”
Advocate Seervai called the government’s move ‘alarmist’. “There is already Press Information Bureau, a government organisation that flags information about the government’s business which it believes to be fake, false or misleading. Not one case has been pointed out by the Union since the split judgement, that the absence of the FCU has caused any prejudice to it. This makes out a strong case for why interim relief should be granted,” he argued.
Mr. Mehta in his argument stressed upon the challenges posed by social media platforms in terms of reach, anonymity, potential threat of spreading misinformation through the platform. He said, “Once FCU flags something as fake or false, the social media intermediary is not obligated to do anything. If they put a disclaimer on the flagged content that it is fake as per government FCU, their safe harbour under section 79 of the Information Technology Act will continue. There are various examples of misleading posts in the form of deepfakes. The amended rule does not impose any obligation to remove content.”
Advocate Seervai said that Justice GS Patel held that the amendment is a direct infringement of Articles 19(1)(a), is not saved by Article 19(2), and its language is vague and indeterminate. “Many of the examples of fake information cited by Mr. Mehta were effectively countered by the Press Information Bureau, without any FCU. The erroneous belief that government ‘knows best’, that only government can look after the interest and well-being of citizens who cannot be trusted to be intelligent, mature, discerning. Now my respectful submission is that such a theory must be rejected.”
