tl;dr
On April 6, 2023, the Ministry of Electronics and Information Technology (MeitY) released the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Amendment Rules, 2023), which included a provision allowing a "fact check unit of the Central Government" to deem any online content related to "any business of the Central Government" as false or misleading and require it to be removed from the internet. Political satirist and standup artist, Mr. Kunal Kamra, filed a writ petition in the Bombay High Court challenging the constitutionality of this provision, arguing that it violates the Information Technology Act, 2000 (IT Act, 2000), and infringes on the rights to freedom of speech and expression and the right to practice one's trade and profession. In response, the Ministry of Electronics and Information Technology has undertaken not to notify its Fact Check Unit until July 5, 2023.
Background
The IT Amendment Rules, 2023 introduced significant amendments to Rule 3(1)(b)(v) of the IT Rules of 2021, which governs the due diligence obligations of intermediaries. The updated rules mandate intermediaries to take "reasonable efforts" to prevent their users from posting or sharing information related to the Central Government that has been identified as “fake or false or misleading”. This determination will be solely made by a "fact check" unit to be established by the Central Government itself. If intermediaries do not comply with these due diligence requirements, they may lose their safe harbour status under Section 79 of the IT Act of 2000.
Mr. Kunal Kamra, a political satirist and standup artist, has challenged the constitutional validity of the IT Amendment Rules, 2023 before the Bombay HC on the following grounds: Firstly, the rules violate Sec. 79 of the IT Act, 2000 and Shreya Singhal v. Union of India, which requires any revocation of safe harbour for intermediaries to conform to subject matters laid down in Article 19(2). Secondly, they infringe on the right to freedom of speech and expression under Article 19(1)(a), as they fail to define "fake or false or misleading" and "any business of the Central Government''. Vague and overbroad laws like this create a chilling effect on free speech. Thirdly, the rules do not satisfy reasonable restrictions on freedom of speech and expression under Article 19(2) and fail to meet the proportionality test. Finally, the rules also infringe on the right to practice one's trade or profession under Article 19(1)(g) by subjecting the creations of political satirists and comedians to a biased "fact check" unit, which could result in the deactivation or suspension of their social media accounts.
Proceedings before the Bombay High Court
On April 11, 2023, the Bombay High Court ordered MeitY to explain why the IT Amendment Rules, 2023 should not be stayed and file its response within a week. MeitY was directed to provide the factual background behind the amendments in its affidavit.
Subsequently, on April 27, 2023, the Union Government has provided an undertaking that it will not notify this fact check unit until the next date of hearing. This has been recorded in its order by the Bombay High Court, thereby operating as an effective stay on the operation of the IT Amendment Rules, 2023, in so far as they apply to the Government’s fact check unit.
The next date of hearing is June 8, 2023, for directions for final arguments. The Union Government has been directed to file a compilation of materials relied on by June 6, 2023. We will be ready and prepared to challenge these far-reaching and over-broad fact checking powers on that date.
We will continue to provide legal support to Mr Kunal Kamra in his efforts to protect the right to speech and privacy of Indians on the internet, when the matter moves for final hearings. We are immensely grateful to Sr. Adv. Navroz Seervai and Sr. Adv. Darius Khambata for leading us in the matter. They were 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.
Important Documents
- Writ petition in Kunal Kamra v. Union of India (Link)
- Bombay HC order dated 27.04.2023 (Link)
- Bombay HC order dated 11.04.2023 (Link)
- Affidavit in Reply by MeitY (Link)