'How Is News Any Less Fake Or Misleading In Print?' Bombay High Court Expresses Concerns About IT Rules Singling Out Digital Content

The Bombay High Court on Thursday expressed concerns about the distinction between online and print media under the amendments to the IT Rules, 2021 which empower a government fact-checking unit (FCU) to identify any 'fake, false or misleading' information about the central government and ask intermediaries such as Twitter and Facebook to take down the content. Pointing out that this rule would exclusively affect digital media, and not its print counterparts, Justice GS Patel asked:"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. What will happen? What is it the government intends to do? Is it going to not deal with something which it is available in both print and online? Does the fact that they are not applying this to print media result in an automatic curtailment of their powers on what they can do to online content? If someone takes a picture of a newspaper and posts it on Twitter, Twitter will face a takedown notice but will nothing be done to the newspaper?"A division bench of Justice GS Patel and Justice Neela Gokhale was hearing a batch of petitions challenging Rule 3(i)(II)(C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 allowing the FCU to identify fake or misleading news about the business of the government. The petitions have been filed by stand-up comedian Kunal Kamra, the Editor's Guild, and the Association of Indian Magazines.During the hearing today, the bench also voiced its doubt about the 'assumption of binary of true/false' in the amended rule. Justice Patel observed, "There is an assumption of binary which we know traditionally from art and literature, is a matter of perception. 'Misleading' is possibly the most misleading." The judge also noted that on their own, the words 'fake', 'false', or 'misleading' with a provision allowing the FCU to unilaterally identify such content posed a problem. "They themselves are not the problem as the unamended rules also have them. The problem is the connection of these words with the authority of the FCU to identify unilaterally such news," Justice Patel said. Last week, the court had asked whether upcoming political campaigns will be considered 'business of government' under the amended rule. It also asked if there was any protection for editors or editorial content under the amended rules, rhetorically asking the petitioner’s counsel if his arguments published on news portals like LiveLaw could be termed as 'potentially misleading' under the very rules he had challenged.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 which the government’s fact-checking unit flags as ‘false’ or ‘misleading’, it will have to defend itself before a court if action is taken.Courtroom ExchangeSenior Advocate Navroz Seervai, for comedian Kunal Kamra said, "it is the [FCU's] power to decide within this mythical binary of false and true which is the problem." To illustrate this point, he used the example of satire, saying, "The fundamental trick of satire is to hoodwink the public to believe what is actually false to be true and then they realise they have made a fool of themselves and laugh and go home. This [rule] will completely destroy satire."He argued that any restriction to a fundamental right has to come as a result of a legislative process, and as such, the fundamental right to the freedom of speech cannot be restricted by Rules framed by the executive. He said that the eight heads for restriction of freedom of speech under Article 19(2) of the Constitution are exhaustive and they do not include an attack against the Government. He also argued that even if the objective of the rule were legitimate, the carving out of the central government as the sole member of a class, information about which will be subject to a process of verification, would amount to an 'illegitimate and invalid' class legislation. He said:"The government must justify why it is a class on its own. But the government offers no justification as to why any fake news regarding the business of the central government is on a different footing. It provides no evidence to show that there is more speculation regarding the government. There is no explanation for why it doesn't apply to state governments, statutory authorities, etc."Justice Patel weighed in on this issue, asking why, as per principle of in loco parentis, the fact-checking unit will only verify news regarding the business of the government. "Every second day, people get messages with fake information - 'don't open the app or it'll explode', etc. It's harmless, so are they correcting this also?", he asked.Seervai also submitted that no notice is proposed to be given to the party affected by the FCU when it concludes that some information about the central government is false or...

'How Is News Any Less Fake Or Misleading In Print?' Bombay High Court Expresses Concerns About IT Rules Singling Out Digital Content

Amisha Shrivastava & Awstika Das

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