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Kunal Kamra Moves Bombay High Court Against IT Rules Amendment That Allows Centre To "Fact Check" Social Media Posts About Itself
Sharmeen Hakim
11 April 2023 6:40 AM GMT
Stand-up comedian Kunal Kamra has approached the Bombay High Court challenging the new amendment to Information Technology Rules that empower the Central Government to identify 'Fake News' about itself in the social media."In effect, the Rules require social media intermediaries to censor or otherwise modify content that relates to the Central Government, if a government-mandated...
A division bench of Justice Gautam Patel and Justice Neela Gokhale directed the Centre to file its reply by April 19, detailing the factual background of the Rules and the reasons for the amendment and posted the matter for hearing on April 21.
On 6th April 2023, the Ministry of Electronics and Information Technology (MeitY), Government of India, notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.
The Rule 3(i)(II)(C) of the 2023 amendment empowers MeitY to notify a fact check unit of the Central Government that will identify fake or false or misleading online content in respect to any business of the Central Government.
The effect of this amendment would be that social media sites (Facebook, Twitter etc.) and telecom service providers have to inform the user not to host, display, upload, modify, publish, transmit, store, update or share any information in respect of any business of the Central Government, that is identified as fake or false or misleading by such fact check unit.
Kamra has challenged this Rule 3(i)(II)(A) of the Amendment that amends Rules 3(1)(v) of the 2021 Rules.
During the hearing, Senior Advocate Navroz Seervai for Kamra submitted that the HC stayed a “much less chilling” Rule in 2021. The HC, in 2021 had stayed Rules 9(1) and 9(3) of the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules,2021 which mandate digital news media and online publishers to adhere to the "Code of Ethics" prescribed by the Rules.
Seervai argued that the impugned Rule violates numerous Supreme Court judgements including Shreya Singhal v. Union of India.
Justice Patel, summarizing the challenge, asked, “there may be many interpretations of a certain thing or statement but that doesn't make it false or fake...Can you restrict, restrain or curtail outside the parameters specified?”
Seervai argued that the Rule is neither reasonable nor in public interest. He submitted that if the objectionable thing is repeatedly published, which happens automatically, the user’s account can be deactivated as one of the effects of the Rule.
Seervai argued that the career of people who survive only on social media platforms is finished due to the Rule.
Additional Solicitor General Anil Singh submitted that everything would come to effect only once the notification for Fact Checking Unit is published. Hence, there is no urgency. However, the bench stated that it would consider everything urgent when it comes to freedom of speech.
Seervai argued that once content is published, the notification for fact check unit can have a retrospective effect on that content.
According to the plea, the Rule violates Articles 14 and 19(1)(a) and 19(1)(g) of the Constitution of India, and the provision is ultra vires Section 79 of the Information Technology Act, 2000.
"The Rules are an unreasonable restriction on the Petitioner's fundamental right to practise trade or profession. The Petitioner is a political satirist who relies on social media platforms to share his content. The Impugned Rules could potentially lead to the Petitioner's content being arbitrarily blocked, taken down, or his social media accounts being suspended or deactivated, thereby irreparably..."
He states that the Rules in effect amends Rules 3(1)(a) and 3(1)(b)(v) of the IT Rules, 2021 as a result of which social media intermediaries are directed to make "reasonable efforts" to cause their users -through rules, regulations, and other policies - not to 'host, display, upload, modify, publish, transmit, store, update, or share any information' which is "identified as fake or false or misleading by [a] fact check unit of the central government' in respect of any business of the central government."
Furthermore, the Impugned Rules are over-broad, vague, and constitute unreasonable restrictions to freedom of speech and expression under Article 19(1)(a) of the Constitution, by making the State the sole arbiter of truth or falsity of speech.
"The Impugned Rules do not come within the eight enumerated restrictions under Article 19(2), nor do they constitute reasonable restrictions."
Sr. Adv. Navroz Seervai appeared in the matter. He was assisted by Advocates Arti Raghavan, Meenaz Kakalia, and the legal team from Internet Freedom Foundation, comprising Gautam Bhatia, Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh and Gayatri Malhotra.
Case no. – WP(L)/9792/2023
Case Title – Kunal Kamra v. Union of India
(Compiled by Amisha Shrivastava)
