Tl;dr
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 April 6, 2023. 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 Association of Indian Magazines (AIM) has 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. The Bombay High Court directed the Government to file its Reply to this petition by June 20, and has listed the matters for final hearing on July 6 and 7, 2023. The undertaking provided by the Government not to constitute its fact check unit has been extended to July 10, 2023. IFF has provided legal support in this matter.
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 the IT Rules, 2021, and provided itself with 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.
Background
The IT Amendment Rules, 2023 introduce significant changes to Rule 3(1)(b)(v) of the IT Rules, 2021, which pertain to the due diligence obligations of intermediaries. Under the amendments, intermediaries are now required to exert "reasonable efforts" to ensure that their users refrain from uploading or sharing any information about the Central Government that is deemed "fake, false, or misleading" as determined solely by a "fact check" unit appointed by the Central Government itself. Non-compliance with these due diligence requirements puts intermediaries at risk of losing their safe harbour status under Section 79 of the IT Act, 2000.
The IT Amendment Rules, 2023 are unconstitutional
The Association of Indian Magazines (AIM) is a registered society under the Societies Registration Act, 1860. It comprises 40+ magazine publishers with 300+ publications in 10 languages. AIM reaches over 150 million Indians through print, digital, and social media. Key members of AIM include India Today Group, Delhi Press, Ananda Vikatan, Outlook Group, Malayala Manorama Publishing, and Cybermedia. AIM, in the present petition, a copy of which is available here, has argued that:
- IT Rules Amendment Rules, 2023 are ultra vires Sec.79 of the IT Act, 2000-
- Shreya Singhal v. Union of India, 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.
- The IT Amendment Rules, 2023 violate 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”. In Shreya Singhal, restrictions on freedom of speech and expression were held unconstitutional on the grounds of vagueness and overbreadth, and for having a chilling effect on freedom of speech and expression. As a result of the amendment, intermediaries will be compelled to prioritise the removal of content flagged by the government's fact-checking unit to avoid jeopardising their safe harbour protections.
- The IT Amendment Rules, 2023 do not satisfy reasonable restrictions on freedom of speech and expression under Article 19(2)-
Restrictions on speech should adhere to Article 19(2) and should not be based on grounds beyond those specifically enumerated in Article 19(2). "Fake or false or misleading" content is not explicitly mentioned in Article 19(2). Additionally, the IT Amendment Rules, 2023 fail to pass the proportionality test, which requires the selection of the least restrictive alternative. Instead of mandating intermediaries to remove online content, there are several less restrictive options available, such as issuing clarifications or corrections, specifically for information the government deems inaccurate regarding its activities.
Proceedings at the Bombay High Court
The petition was filed by the Association of Indian Magazines on June 6, 2023. A bench of the Bombay High Court comprising Justice Gautam Patel and Justice Neela Gokhale was pleased to direct the Government to file its Reply, and has directed that the matter be heard along with Kunal Kamra v. Union of India. The Bombay High Court has directed the Government of India to submit their Reply to this petition by June 20, 2023. The Petitioners have been directed to complete their submissions on July 6 and 7, 2023, and the further dates for the Government’s submissions will be notified by the Court. The undertaking previously provided by the Government not to constitute the fact check unit has been extended to July 10, 2023.
We will continue to provide legal support to AIM in their efforts to protect freedom of speech and expression on the internet. We are immensely grateful to Adv. Aditi Saxena for helping us filing the matter. She was assisted by the legal team from IFF comprising Gautam Bhatia, Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Radhika Roy and Gayatri Malhotra. We are also grateful to the Association of Indian Magazines for having confidence in us to take this matter up.
“The amendment made to the IT Rules with respect to a fact checking unit with sweeping powers to determine what is "fake or misleading" is akin to censorship, against principles of natural justice, as well as against guidelines laid down by the Supreme Court itself in earlier cases. This has the potential to create an all powerful Orwellian censorship system, which will have deeply adverse implications for press freedom. We are extremely pleased that notice has been issued and the rules stayed for now, and hope that they are withdrawn eventually”
- Anant Nath. Vice President, Association of Indian Magazines
We are also grateful to Sr. Adv. Navroz Seervai, Sr. Adv. Darius Khambata and Advocates Arti Raghavan, Meenaz Kakalia for leading on the Kunal Kamra v. Union of India.
Important Documents
- Writ Petition in Association of Indian Magazines v. Union of India (link)
- Writ Petition in Kunal Kamra v. Union of India (link)
- Previous blogpost relating to the challenge IT Amendment Rules, 2023 titled “In Kunal Kamra’s Petition in the Bombay High Court, the Government undertakes not to constitute its Fact Check Unit”. (link)