IT Rules Amendment | Bombay High Court Asks Why Fact Checking Unit Is Required If It Cannot Compel Removal Of Fake News

The Bombay High Court on Tuesday wondered why the amendment to Information Technology Rules, 2021 providing for a government Fact Check Unit (FCU) is required when the FCU cannot compel social media platforms to take down content flagged as false, fake, or misleading.Justice GS Patel asked Solicitor General Tushar Mehta, who began arguments for the central government today, to reconsider his submission that a social media intermediary can choose not to take down flagged content."See you have the PIB (Press Information Bureau) that has its own Twitter account. If it can do a fact check and publish, then why the amendment? I suspect, that if the FCU says this is false, the compliance by the intermediary is required. Otherwise, it makes no difference...why do you need the amendment unless you are going to compel (intermediaries to remove it)?"Justice Patel also asked why the second part of the amended Rule 3(1)(b)(v) of the IT Rules (Intermediary Guidelines and Digital Media Ethics Code), 2021, specifying that only false or fake information about 'business of the government' is required.A division bench of Justice GS Patel and Justice Neela Gokhale was hearing centre’s arguments in response to petitions against Rule 3(i)(II)(C) of the IT Amendment Rules, 2023, which amends Rule 3(1)(b)(v) of the IT Rules, 2021. The amendment allows the FCU to identify fake or misleading news about business of the government. The petitions have been filed by comedian Kunal Kamra, the Editor's Guild of India, and Association of Indian Magazines.The court in July remarked that the government itself is a participant in the democracy which has to answer citizens’ doubt about itself, and the power of the fact checking unit (FCU) to identify fake news about the government is “difficult”.The Centre, in a detailed affidavit in response to Kamra’s petition, has submitted that if a social media or news website continues hosting information the Government’s FCU has flagged as ‘false’ or ‘misleading’, it will have to defend itself before a court if action is taken.Courtroom ExchangeMehta argued that the term 'Business of the govt' can be defined as whatever the executive does. The Prime Minister's general comments will not be business of the government, he said.He argued that under the amended rule, fake and false news is resolved, but not criminalized, and an intermediary would lose safe harbour only if it continues to carry content on its website after being informed that it is wrong. Mehta argued that "misleading" information in the amended rule would mean "patently false" information and cannot be construed any other way. He said that the amended rule is about social media platforms hosting fake or false information. For e.g., someone says government has transferred 150 officers, FCU will say this is false, he said.To this, Justice Patel asked that whether business of the government is restricted to items mentioned in List I (Union List) of the Seventh Schedule of the Constitution. Mehta answered this in the affirmative.Mehta agreed with Justice Patel’s summary of his argument that the rule, rather than curbing free speech, limits exercise of power to only content about government business which is false or fake, and this classification must come from a notified FCU.Mehta clarified that a victim doesn't have to be a user of the social media platform. Anyone who sees the fake content can be the victim. He emphasized that the social media intermediary must “resolve” the issue within 24 hours if a complaint is raised, and not "remove" the flagged content.Justice Patel asked what will happened if the content flagged by FCU as fake, false or misleading is not taken down. Nothing will happen unless a victim approaches the court, Mehta answered. He further said that the government can also be an aggrieved party, and the court will be the final arbiter. He submitted that while earlier social media intermediaries refused to share information of anonymous accounts allegedly posting fake content citing their privacy agreements, under the amended rule, this information can be obtained with a court order once the safe harbour of the intermediary is lifted.Mehta emphasized that the mandate on social media intermediaries is not for removal of flagged content but for resolution of the dispute. An intermediary can either take down the flagged content, not take down the information, or put a disclaimer, he said.Justice Patel remarked that the rules are so expansive that anything the FCU dictates as the arbitrator must be done because of the word "shall" and results in violation of Articles 19 and 14.Mehta argued that the amended rule balances the right of the aggrieved person, who can now approach the court, the right of the social media intermediary, the right of government to inform true facts, and saves the public from false or fake information. Mehta claimed that the amendment does not criminalise false and fake news but provides a mechanism so...

IT Rules Amendment | Bombay High Court Asks Why Fact Checking Unit Is Required If It Cannot Compel Removal Of Fake News

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Sharmeen Hakim

IT Rules Amendment | Bombay High Court Asks Why Fact Checking Unit Is Required If It Cannot Compel Removal Of Fake News

Sharmeen Hakim

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