The Bombay High Court said except the court, nobody had the authority to pronounce what is true and false while questioning the Centre’s amendment to the Information and Technology (IT) Rules, 2023 which empowered its Fact-Checking Unit (PCU) to decide with “absolute authority” what is fake, false, or misleading.
The high court further noted that the new IT Rules, 2023 was also silent on the boundaries of what is fake, false or misleading while questioning the need behind the revision to the rules.
“This is completely binary... Even a court only says probably this may be the truth and probably this is false,” the bench added.
The court said the government already had the Press Information Bureau (PIB) which regularly posted information on social media about content that has been marked as fake or false. “Is it the government's case, that if not for the amendment [to the IT Rules] the social media intermediaries will run amok? Which is not the case at all,” the court said.
The high court observed offline [print media], there were certain filters… Papers like Washington Post and others have their own fact-checking. For social media intermediaries there is no fact-checking, there should be, it added.
“But you (petitioners) may be right to say that this (the IT Rules) is excessive. You cannot bring a hammer to kill an ant,” the court said.
Referring to the Centre’s affidavit, the court reasoned that by the amendment the government identified a separate box of data – the source and the connection.
“The government says make a reasonable effort to not publish it because we are saying do not publish it,” the bench observed. “Suppose the government says remove this, you take reasonable efforts. You will lose harbour if you fail to take reasonable efforts. That is all they are telling you,” Justice Patel added.
The Bombay High Court is hearing a batch of pleas filed by stand-up comic Kunal Kamra, the Editors Guild of India, Association of Indian Magazines and the News Broadcasters Association challenging the government’s amendment to the IT Rules, 2023 allowing it to determine what is fake, false or misleading.
The Centre on April 6 notified the new IT Rules which have been challenged.
BOOM recaps the arguments and observations made so far.
Who will fact-check the Centre’s fact-checker? Bombay High Court
The Bombay High Court said it did not understand the rationale behind the Centre’s need to amend the IT Rules while expressing concern over how one authority of the government has been given absolute power to decide what is fake, false, and misleading.
Questioning the government’s decision on constituting a fact-checking unit (FCU), the high court wondered who will fact-check the Centre’s fact-checkers. “There is an assumption that what the FCU says is undeniably the ultimate truth,” Justice Patel said.
The bench—comprising Justices GS Patel and Neela Gokhale—added that discourse is an essence of a democratic process where the government itself is a participant. It noted that there was no fundamental right to lie, but a citizen has the right to doubt [the government] or defend the correctness of their statement.
A citizen has the right to question the government and the government is duty-bound to answer, the bench said.
Citing an example, the high court asked that if someone wrote an opinion piece on the perils or effects of the Citizenship Act, which has been hotly contested from sections of the society, then could such an opposing view be ordered to be taken down as fake, false, and misleading? Simply because this statute comes under government business?
On July 13, the high court also questioned why the IT Rules were only applicable to digital media and not print media. "How is it less fake, false, or misleading merely because it is in print? You get an e-paper version of the newspaper. Both say the same thing,” the high court commented.
“…So, if someone takes a picture of a newspaper and puts it up on Twitter, then Twitter will face a takedown notice, but nothing will be done to the newspaper?” it added.
While hearing arguments on this matter last week, the high court even questioned whether with Elections coming up, poll campaigns would fall under “government business”?
“As we are approaching 2024, people will get on the campaign trail and all kinds of things will be said. Suppose, one of the online journalists question something someone said at a public rally, and say it is factually incorrect, then is that the business of the government or not?, the high court asked.
“Does the government say your correction is incorrect, so you must take it down. How is this actually supposed to work I don't understand”, Justice GS Patel had remarked.
People do not need to be “mothered” by a “nanny state”: Kunal Kamra
In his challenge to the Centre’s amendment to the IT Rules, 2023 stand-up comic Kunal Kamra asked if the State had so “little faith in its public” that it needed to “mother” them or become a “nanny state”?
Senior advocate Navroz Seervai, representing Kamra, argued that the new IT Rules deny safe harbour to any social media intermediary that does not “play ball” which struck at the “heart” of internet usage. “Denial of marketplace ideas or throttling of ideas is called the chilling effect,” Seervai argued.
“It is a way of saying my way or the highway. We will ensure social media covers what we want and what we term the truth by the loss of safe harbour”, Seervai had said.
Citing examples, Seervai said that at one point the Church—which considered the Earth flat—had branded Galileo as a heretic for championing the theory of the Earth revolving around the Sun, and Charles Darwin's theory of evolution was considered misinformation.
Seervai submitted that social media intermediaries were profit-based platforms and the most vulnerable targets of the IT Rules, 2023. It’s not in their interest to retain the material they have hosted at the cost of losing safe harbour, Seervai said. Regardless of the wording, the IT Rules violated one’s right to free speech and intermediaries were likely to “over-censor” if faced with the prospect of litigation.
If IT Rules pass muster, will lead to state-sponsored informational authoritarianism: Editors Guild of India
The Editors Guild of India told the Bombay High Court that if the amended IT Rules, 2023 passed muster, then it would lead to “state-sponsored informational authoritarianism”.
“What stops the government from saying their version is the only true version? As the Editors Guild of India, we publish both sides of the story,” advocate Shadan Farasat argued.
Farasat said the guild was challenging the new amendment to IT Rules on the point that the government has given itself the right to determine what is misleading, false, or fake about its own conduct.
He added that the government’s power to determine what's misleading was the “lowest bar”. But if the Centre disagrees with an editor on some facts, this disagreement is sufficient to knock out free speech from Article 19(1)(a) which guarantees this right.
The government may say an editor is wrong and the news should be taken down from the public domain. Giving examples, Farasat submitted, that while reporting on COVID-19, there were reports about oxygen shortage, Covid deaths, no medicines etc.
But not suppose the government says this is not so; there is enough oxygen, the figures of those who died due to COVID are different. What happens then? Farasat asked.
Farasat argued that “my right as a participant in a democracy does not end in me casting a vote…”.
Article 19(1)(a) is my right to participate in the democracy of my country. I cannot be a voter without information. The functioning of government is the core basis on which people are expected to vote, he added.
If intermediaries lose safe harbour, they will self-censor: Association of Indian Magazines
The Association of Indian Magazines questioned the new IT Rules, 2023 on three grounds:
- Does the Constitution authorise the government to classify speech based on values?
- Does the Constitution authorise govt to be the sole arbiter of what is true or false?
- Are the impugned amendment intra vires the parent statute?
Advocate Gautam Bhatia said the answer to all of the above was no.
Bhatia argued the examples given by the government do not show what is “bare falsehood”. You have to show how certain harm in order to penalize someone for spreading lies.
He said the rules compel an intermediary to take content down the Centre deems false. “What they have said is you have a choice not to take it down, you will lose the safe harbour, and that is the problem. If you have the capacity to take it down, then the accusation is you have not taken reasonable efforts. The coercion is that loss of safe harbour,” Bhatia added.
It [the rules] is an illusion of choice. If you do not apply, then consequences will follow. An intermediary’s commercial interest will not be served in court if they lose the shield, Bhatia said.
“So then they [intermediaries] will self-censor. That should be checked by this court, Bhatia said concluding his submissions.
Government has not defined what is fake, or misleading: News Broadcasters Association
The News Broadcasters Association argued the impugned IT Rules was a “clear case” where the unconstitutionality is writ large on the statute.
“In fact the more I think of it, the more I feel it is easier to underestimate the consequences of the notification if it is allowed to stand,” senior advocate Arvind Datar said.
The main issue here is that the Centre has not defined what is fake, false or misleading. Another core contention was that the rules applied to digital media only, and not to print or electronic. “How does one express anguish against the government on social media? The major problem is that what is permissible in print and electronic media is impermissible on social media.
Datar said the consumption of news habits has changed. Nowadays, interviews with important people are no longer in newspapers or TV, but on social media. There is an assumption that after five days, I will not have the print version of a newspaper. But on Youtube, the news is forever, Datar said.