New Delhi: In the Bombay High Court’s split verdict on the 2023 amendment to the Information Technology Rules empowering the Centre to establish a fact-check unit, Justice Gautam S. Patel felt that the amendment amounted to censorship. Justice Neela Gokhale on the other hand opined that it did not prohibit critical opinion or satire or parody, howsoever critical of the government or its business, as long as it was not false or misleading.
The high court delivered the split verdict Wednesday on petitions challenging the amendment to a rule under the Information Technology (IT) Act. The matter will now be decided by a larger bench.
The rule empowers the government to form a fact-check unit (FCU) for identifying false, fake or misleading online content “related to the business of the central government”. The petitions had been filed by comedian Kunal Kamra, the Editors Guild of India, the News Broadcasters & Digital Association, and the Association of Indian Magazines.
Rule 3 of the Information Technology Rules, 2021, lays down the due diligence requirements for intermediaries to follow while discharging their duties. Intermediaries include telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-marketplaces, and platforms such as Facebook, Twitter, Blogspot and WordPress.
Rule 3(1)(b)(v) specifically requires the intermediary to make reasonable efforts so that its users don’t display or upload or transmit any information that has been identified as fake or false or misleading by such FCU set up by the Centre.
The petitioners had contended that the amendment had just one purpose — to muzzle criticism and questioning of the central government, and to stifle dissent from what the government puts out in regard to the affairs of the state. They had also asserted that the central government had anointed itself as the sole arbiter of what is or what is not “fake, false or misleading”.
The amendment was overbroad, vague and without controlling guidelines, they contended, adding that it did not even provide an opportunity for the propounder of any information to defend its correctness, and the government was becoming a judge in its own cause.
Failure by intermediaries to take down content flagged by the FCU could result in them losing their safe harbour protections under the IT Act, which provides them protection against liability for content posted on their websites by third parties.
In his opinion, Justice Patel felt that the 2023 amendment “is not just too close to, but actually takes the form of, censorship of user content”. However, he clarified that this was not a comment on any dispensation or the present government.
On the other hand, Justice Gokhale felt that the “requirement of a nuanced regulation underscores the cost of free speech absolutism in this ‘infodemic’ era”.
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‘Battle for control’
Justice Patel’s opinion began with the perils of technology, with him pointing out that “the boundaries between truth and falsehood are blurred”. He then asserted that the contest before the court was not about social media generally or about technology.
“It is a battle for control — or some level of control — over digital content,” he asserted.
According to Justice Patel, the problem at the heart of the rule in question is whether the absolute determination of that which is fake, false or misleading is even possible in all circumstances. He noted that there are statements that are truths, like two plus two always equals four, and then those that are neither true, nor false, like “opinions, hopes, desires”.
He then explained: “But what the impugned Rule is concerned with is content and information that lies between these polarities: subjective assessments even on objective data, or questioning of the data, especially if that data comes from the government.”
“It is possible, for instance, to query the ‘official’ government data on any metric — the economy, poverty, health, for instance — or to question and look askance at contemporary events and actions — demonetisation or what is most likely to have happened during a border skirmish or incursion,” said the judge.
He also rejected the submission that the fundamental right to freedom of speech and expression is to ensure that every citizen receives only “true” and “accurate” information — as determined by the government.
“It is not the business of the government to keep citizens from falling into error. It is the other way around. For it is very much business and should be the duty of every citizen to prevent the government from falling into error. Governments do not select citizens. Citizens elect governments,” he observed.
The judge also expressed concern over the structure of the FCU, saying that it does not have any “safeguard against bias”. He also said that there were no guidelines, no procedure for hearing, and no opportunity to counter the case that some information is fake, false or misleading.
“Regarding the business of the Central Government, the Central Government’s FCU will decide whether content is fake, false or misleading. How, on what material, no one knows. Even we are not told,” he added.
Justice Patel also accepted the argument that the rules create inconsistent standards for print and online content, and constraint press freedoms and speech disproportionately for online media.
‘Who checks the fact-checker?’
Justice Patel observed that the rule in question shifts the responsibility for the accuracy of the content from the creator or originator of the content to the service provider or intermediary — an entity which has no control over the content at all.
The lack of definition for words like “business of the government”; “fake”; “false”; and “misleading” makes the amendment “vague and overbroad”, he added.
“Anything might be the business of the government. Anything could be said to be ‘fake’. ‘Misleading’ is entirely subjective. And as to ‘truth’ and ‘falsity’, throughout recorded human history there are few, if any, absolute truths,” the judge observed.
“Who, after all, is to fact-check the fact-checker? Who is to say if the view of the FCU is fake, false or misleading?” he further asked.
Justice Patel, therefore, ruled that the amendment was ultra vires Article 19(1)(a) (freedom of speech and expression), Article 19(2) (restrictions on freedom of speech and expression), Article 19(1)(g) (freedom to practice any profession or carry on any occupation, trade or business), Article 19(6) (restrictions on the freedom to practice any profession), Article 14 (equality before law), violated the principles of natural justice, and was also ultra vires the IT Act.
He also rejected the submission that there had been no violation of the rule, in the form of censorship or unilateral takedown of content as yet.
He further asserted that there was no particular reason why information relating to the business of the central government should be more deserving of protection with a dedicated cell to identify that which is fake, false or misleading, as opposed to precisely such information about any individual or news agency.
Justice Patel, therefore, struck down the amendment, asserting that “it is unthinkable that any one entity — be it the government or anyone else — can unilaterally be ‘identified’ to be fake, false or misleading”. This, he said, cannot be the sole preserve of the government.
Justice Patel’s opinion ended with him saying that he regretted that he had been unable to persuade Justice Gokhale to his perspective. However, he said that this is “possibly the most complete answer to the very issue at hand, reinforcing thoroughly my view: that in our country, and under our Constitution, an alternative view should not ever be allowed to go unsaid, unheard or unread”.
‘Unfair’ allegations
On the other hand, Justice Gokhale opined that the right of free speech will not come into picture if the user knowingly and intentionally shares fake, false or misleading information, flagged albeit by an FCU of the central government, resulting in a disclaimer or take down or any other action.
In her conclusions, the judge felt that the allegation of bias against FCU members only because they were government appointees was “unfair and this by itself does not divest their character as independent persons”.
“The charter of the FCU, the extent of its authority, the manner of its functioning in ascertaining fake, false or misleading information, etc, is yet unknown. In case of any actual bias exhibited by the FCU, recourse to the courts of law is always open to the aggrieved person,” she observed, adding that a challenge to potential abuse by the FCU on the basis of an apprehension was “premature”.
Justice Gokhale was of the opinion that the rule in question did not directly penalise either the intermediary or the user, without recourse to a court of law. She pointed out that an entire mechanism was provided in the form of a grievance redressal officer and an appellate committee.
She also rejected the arguments that the provision was vague, and said that the words “fake”, “false” and “misleading” are to be understood in the ordinary sense of their meaning.
Justice Gokhale further asserted that the right of citizens to participate in the representative and participative democracy of the country is meaningless unless they have access to authentic information and are not misled by misinformation, information which is patently untrue, fake, false, or misleading, knowingly communicated with malicious intent.
“The measures adopted by the government are consistent with the object of the law and the impact of the encroachment on fundamental right is not disproportionate to the benefit which is likely to ensue,” she added.
(Edited by Nida Fatima Siddiqui)
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While I find myself agreeing more with Justice Gautam Patel than Justice Neena Gokhale, some regulation needs to be applied to means of mass communication. The fiasco in the US where Trump, using his cult of personality, manages to promote a falsehood about the integrity of the 2021 election and by consequence of all state actors who participated in conducting it is scary. We have our own Rahul Gandhi who already tried this dirty low trick. I think everyone should have the right to call the prime minister an idiot online. Somehow, though we need to draw the line between the gravities of the statements : “The PM is an idiot” and “The election was stolen”. I don’t think that government alone should draw the line. This power could probably be exercised by civil servants, juries or the president. None of it is safe but giving such power to governments alone makes it possible for them to stifle inconvenient ro un-provable truths. At the very least, governments should have to explain why they decide a statement to be false and lay it before the public; not only identify it.