On April 6, 2023, the Ministry of Electronics and Information Technology (MeitY) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Amendment Rules, 2023). Among several provisions related to online gaming, it also contains a provision empowering a “fact check unit of the Central Government” to declare any content on the internet relating to “any business of the Central Government” as “fake or false or misleading” and order it to be taken down from the internet. Mr. Kunal Kamra, a political satirist and standup artist, filed a writ petition before the Bombay High Court challenging the constitutional validity of this provision of the IT Rules Amendment, 2023 for being ultra vires the Information Technology Act, 2000 (IT Act, 2000), and violating the right to freedom of speech and expression and the right to practice one’s trade and profession. The Bombay High Court has directed MeitY to file its response within one week on why the IT Amendment Rules, 2023 should not be stayed, and also describe the factual background that necessitated the issuance of the amendments.
Why should you care
The IT Rules, 2021 granted the government greater authority over digital news media platforms, OTT platforms, and social media intermediaries. However, MeitY has now amended IT Rules, 2021, and provided itself even broader powers of censorship of any content that it deems fake, false or misleading. Such a degree of regulation is highly susceptible to abuse and will strongly threaten press freedom by increasing censorship in India.
The IT Amendment Rules, 2023 make significant changes to Rule 3(1)(b)(v) of the IT Rules, 2021 which governs due diligence requirements for intermediaries. The amendments require intermediaries to make “reasonable efforts” and ensure that their users do not upload or share any information about the Central Government, which is “identified as fake or false or misleading”. This will be determined unilaterally by a “fact check” unit to be appointed by the Central Government itself
If intermediaries are not in compliance with the due diligence requirements, they risk losing their safe harbour status under Section 79 of the IT Act, 2000.
The IT Amendment Rules, 2023 are unconstitutional
Mr. Kunal Kamra, political satirist and standup artist, has filed a writ petition before the Bombay HC challenging the constitutional validity of the IT Amendment Rules, 2023 on the following grounds:
- Ultra vires Sec.79 of the IT Act, 2000- In Shreya Singhal v. Union of India, the Supreme Court held that revocation of safe harbour for intermediaries must conform to subject matters laid down in Article 19(2). “Fake or false or misleading ” content is not a ground enumerated in Art. 19(2) or Section 69A of the IT Act, 2000.
- Violates the right to freedom of speech and expression under Article 19 (1)(a) - The IT Amendment Rules, 2023 do not define the phrases “any business of the Central Government”; “fake or false or misleading”; or “reasonable efforts”. The phrase “any business of the Central Government'' is boundless and easily manipulated to include almost any aspect of modern life under a welfare state. In Shreya Singhal, restrictions of freedom of speech and expression were held unconstitutional on the ground of vagueness and overbreadth, and for having a chilling effect on freedom of speech and expression. The Amendment will cause intermediaries to prioritize taking down any content flagged by the government's fact-checking unit rather than risking the loss of their safe harbour protections.
- Does not satisfy reasonable restrictions on freedom of speech and expression under Article 19(2) - Restrictions on speech must be justified within the parameters of Article 19(2) and cannot be based on grounds outside of it. ”Fake or false or misleading” content is not enumerated in Article 19(2). Further, the IT Amendment Rules, 2023 do not satisfy the proportionality test that requires that the least restrictive alternative be chosen. There are several less restrictive alternatives available, such as issuing clarifications or corrections, specifically regarding information that the government deems incorrect in relation to its business, rather than requiring intermediaries to take down online content.
- Violates the right to practice and trade or profession under Article 19 (1)(g) - As a political satirist, Mr. Kamra relies on the internet's extensive outreach, particularly social media platforms, to disseminate his work. Subjecting their content to a capricious and biased "fact check" by a unit chosen by the Central Government would significantly curtail his capacity to partake in political satire. If the IT Amendment Rules, 2023 were applied to the creations of political satirists and comedians, their social media accounts might be deactivated or suspended, which would unjustly restrict their right to exercise their profession or trade.
Proceedings at the Bombay HC
After the IT Amendment Rules, 2023 were notified on Thursday, April 6, 2023, Mr. Kamra reached out to us to challenge this unconstitutional provision. IFF filed this petition on Monday April 10, 2023 and mentioned the matter for urgent listing. A bench of the Bombay High Court comprising Justice Gautam Patel and Justice Neela Gokhale allowed the mentioning, and directed that the matter be listed on Tuesday, April 11, 2023.
After hearing detailed submissions by Sr. Advocate Mr. Navroz Seervai appearing on behalf of Mr. Kamra, and the counsel for the Respondent, the Bombay High Court has directed MeitY to file its response within one week on why the IT Amendment Rules, 2023 should not be stayed. Specifically, MeitY has been ordered to describe the factual background that necessitated the issuance of the amendments in its affidavit.
The affidavit has been ordered to be filed by April 19, 2023, and the next date of hearing in the matter is April 21. We will keep you updated on that day.
We will continue to provide legal support to Mr Kunal Kamra in their efforts to protect the right to speech and privacy of Indians on the internet. We are immensely grateful to Sr. Adv. Navroz Seervai for leading us in the matter. He was assisted by Advocates Arti Raghavan, Meenaz Kakalia, and the legal team from IFF comprising Gautam Bhatia, Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh and Gayatri Malhotra.