The court was hearing petitions challenging the IT Rules that empower the Centre to identify fake, false and misleading information.
The Bombay HC is hearing petitions including th one by stand-up comedian Kunal Kamra challenging IT rules amendment.
Is it permissible in law for a statute to have unbound and limitless discretionary authority, the Bombay High Court asked on Friday, 7 July, while hearing petitions against the recently-amended Information Technology (IT) Rules, ostensibly to tackle fake news.
A division bench of Justices Gautam Patel and Neela Gokhale said before it goes into the effect the Rules would have on the fundamental rights of citizens, it needs to know the boundaries and limits of the words — fake, false and misleading — used in the rules.
The court was hearing a bunch of petitions challenging the IT Rules that empower the Centre to identify fake, false and misleading information posted on social media against the government and its business.
Stand-up comedian Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines filed petitions in the high court against the rules terming them as arbitrary, unconstitutional, and saying that they would have a “chilling effect” on the fundamental rights of citizens.
The bench on Friday said the Rules say action would be taken when some content/information is fake, false and misleading and some authority, in this case a Fact Checking Unit (FCU) set up by the Union government, was assuming the power to unequivocally say that the content is false or not.
“Having an FCU is fine, but what we are concerned about is with the authority conferred on this FCU. What we find extremely and seriously problematic is these words fake, false and misleading,” Justice Patel said.
The court questioned if this would also include opinions and editorial content.
“I do not know or cannot make out the boundaries of these words. Is it permissible in law for a statute to have unbound and limitless discretionary authority like this? What are the limits and boundaries of these words,” Justice Patel said.
Stand-up comedian Kunal Kamra had earlier challenged the amendments in the Bombay High Court.
Additionally, the Union government stated that it would refrain from notifying its “fact-checking unit” (FCU) under the amended rules until 10 July. The court noted that the rules cannot be implemented without the FCU.
The court had instructed the Union government to submit its response to all three petitions by 20 June and provide a copy to the opposing party. The petitioners were granted permission to file their rejoinders by 28 June.
The petition filed by the Association of Indian Magazines received assistance from the Internet Freedom Foundation during its drafting.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Amendment Rules, 2023) were notified by the Ministry of Electronics and Information Technology (MeitY) on 6 April.
“Along with various regulations concerning online gaming, the amendment also grants authority to a “fact-check unit of the Central Government” to categorise and remove any online content pertaining to “any business of the Central Government” that is deemed “fake, false, or misleading,” the Editors Guild of India has noted.
It added that the effect of the impugned rule is that the moment the “fact-check unit of the Central government” disputes the truth/veracity of a news item regarding “any business of the Central Government”, the fact of such disagreement alone obliterates the publisher’s freedom to publish and citizen’s right to access such information.
The Editors Guild had raised its concerns in its statement dated 7 April, stating that “amendments to the IT Rules will have deeply adverse implications for press freedom in the country”.
The Union government amended the rules to prohibit the dissemination of news content flagged as “fake” by fact-checkers at the Press Information Bureau (PIB), which operates under the Ministry of Information and Broadcasting.
The amended Rule 3(1) (b) (v) reads:
3(1) Due diligence by an intermediary: An intermediary, including [social media intermediary, significant social media intermediary and online gaming intermediary], shall observe the following due diligence while discharging its duties, namely…
(b) the intermediary shall inform its rules and regulations, privacy policy and user agreement to the user in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice and shall make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that . . .
. . . (v) deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature [or is identified as fake or false by the fact check unit at the Press Information Bureau of the Ministry of Information and Broadcasting or other agency authorised by the Central Government for fact-checking or, in respect of any business of the Central Government, by its department in which such business is transacted under the rules of business made under clause (3) of article 77 of the Constitution].
Earlier, the clause only covered deceiving or misleading readers about the origin of the message or knowingly and intentionally communicating any misinformation or information which was patently false and untrue or misleading in nature.
While the government debunking falls claims is laudable, the record of its primary fact-checker, the PIB, has been less than glorious.
As a report in the online media-focused portal, Newslaundry noted, “it is rather awkward” that a government has assigned an agency to “fact-check those who tend to call it out”.
The report referred to International Fact-Checking Network (IFCN) which states that fact-checkers must have “a commitment to non-partisanship and fairness” and do not “unduly concentrate on any one side”.
As the report added: “The PIB does not meet this criteria. Most of its ‘fact-checks’ are simply denials of media reports that are critical of the government’s (claims).”
The report added, “(The PIB) does not understand the difference between ‘refutation’ and ‘repudiation’. To repudiate is to deny and reject, but to refute is to disprove. A repudiation requires a PIB babu to prepare a ‘fake news’ graphic for Twitter, but refutation comes with the heavy-duty of painstakingly demonstrating a claim to be false. This sole process is why many decent journalists earn wages, however meagre.”
(With PTI inputs)
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