HC seeks govt reply on plea against IT rules amendment

The amendment empowers a fact-checking unit of the central government to declare any content online pertaining to “the business of central government” as “fake, false or misleading” and to take it down from the internet.

The Bombay High Court on Tuesday directed the Ministry of Electronics and Information Technology (MeitY) to respond to a petition filed by political satirist Kunal Kamra challenging two clauses of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.

The amendment empowers a fact-checking unit of the central government to declare any content online pertaining to “the business of central government” as “fake, false or misleading” and to take it down from the internet. The amendment was notified last week, and experts in the area, including lawyers, said at the time that they would likely be challenged because they go against bot the IT Act as well as the Constitution’s guarantee of freedom of speech and expression, except in some cases.

The specific wording of the amendment that Kamra has challenged reads: “The rules cast an obligation upon intermediaries of making “reasonable efforts to cause users to not publish, display, upload or share information in respect of business of the Central Government that is identified as fake, false or misleading by such fact check unit of the Central Government as the Ministry (Ministry of Electronics and Information Technology) may specify.”

Kamra has challenged the validity of the amended Rules 3(i)(II)(A) and (C) of the IT Rules, 2023 for being ultra vires to Section 79 of the Information Technology Act, 2000 and violative of the principles enshrined in Articles 14, 19(1)(a) and 19(1)(g) of the Constitution of India. These amended rules, he contends, violate the freedom of speech and expression as also his right to practice his trade and profession.

The Bombay High Court has directed MeitY to file a response within one week on why the IT Amendment Rules, 2023, should not be stayed, and to also describe the factual background that necessitated the issuance of the amendments. Justices Gautam Patel and Neela Gokhale have given MeitY until April 19 to file their reply. The next hearing is posted for April 21.

In the petition, filed through advocate Meenaz Kakalia on April 10, the stand up artist has contended that notably the rules do not define the term “business of the Central Government.” He has also expressed apprehension about misuse of the term “reasonable effort,” stating that the intermediary may simply take down the content, if the government’s fact checking unit identifies it as fake or make it unavailable for users in India, flag the content as fake, false or misleading or simply take steps to suspend or deactivate someone’s social account.

Kamra has said that his primary form of comedy is social and political satire, and he hosts a long-running web-series where he engages in discussion with prominent activists, political leaders and journalists on various aspects of the Indian socio-political landscape. The petition says he shares his work on various social media platforms like YouTube, Twitter, Instagram and Facebook through his accounts, and is, as such, affected by the amendment notified by the Ministry of Electronics and Information Technology on April 6.

His petition contends that the rules under challenge travel much beyond Section 79 of the IT Act which confers safe harbour for intermediaries – protecting them from legal action for offensive or objectionable content uploaded by the users of their platforms. He also contends that the amendments also infringe on the freedom of speech and expression, as the term business of the central government is “unconstitutionally broad and vague.”

Vague terms have been used, he says, to “create a chilling effect where intermediaries will resort to take down any information flagged by the Central Government’s fact-checking unit, rather than risk losing safe harbour.”

The rules, according to the comedian, make the central government the sole arbiter of truth in respect of its business obliging private parties to impose that version of truth on all users. “This provision, therefore, makes the government the sole gatekeeper of the marketplace of ideas and constitutes a clear breach of Article 19(1)(a) (freedom of speech and expression),” the petition contends.

The comedian also says in his petition that his “ability to engage in political satire would be unreasonably and excessively curtailed if his content were to be subjected to manifestly arbitrary, subjective fact-check by a hand-picked unit designated by the Central Government. Satire, by its very nature, does not lend to such a fact-checking exercise.”

Arguing for Kamra, senior advocate Navroz Seervai on Tuesday submitted that the amendment rules also violated numerous Supreme Court judgements, including the judgement in the Shreya Singhal case. He said the rules were neither reasonable nor in public interest and the career of people who survive only on social media platforms will be finished due to the amendments.

Additional Solicitor General Anil Singh on the other hand submitted that the amended rules would come into effect only after the notification for fact-checking unit, contemplated under the rules, is published and therefore there was no urgency in hearing the petition. The Bombay high court bench, however, differed, saying it would treat everything as urgent when it comes to freedom of speech and expression. Hindustan Times