tl;dr
The Hon’ble Solicitor-General of India made submissions on behalf of the Ministry of Electronics and Information Technology (‘MeitY’) before the Bombay High Court in a challenge to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (‘IT Amendment Rules, 2023’) on September 26 and 27, 2023. These rules permit a fact check unit of the Union Government to identify ‘fake or false or misleading’ online content ‘related to the business of the Central Government’ and demand its removal from the internet. During its submissions the Union Government clarified that this fact check unit will focus on patently false government-related content, and that its role is only to flag and present views on misinformation, leaving the final call to intermediaries, with a provision of internal redressal mechanism in place and that the courts can step in if issues remain unresolved. It was also submitted that the new rules aim to combat false news on anonymous platforms without penalising humour or criticism of the government. The definition of “information” is limited to facts that can be true or false.
Why should you care?
The fact check unit to be constituted under the IT Amendment Rules, 2023 will be the deciding authority for what information is false or true or accordingly, what information can stay online or must be taken down. If the intermediary does not remove information flagged by the fact check unit, it risks losing its safe harbour under Section 79 of the IT Act. This could seriously threaten the independence of the free press on the Indian internet.
Background
Mr. Kunal Kamra, the Association of Indian Magazines and the Editors Guild of India, have filed writ petitions before the Bombay High Court challenging the constitutionality of this provision. In June 2023, the Bombay High Court directed that all the petitions be listed on July 6 and 7, 2023, for final hearing. On these dates, Senior Advocate Navroz Seervai, representing Kunal Kamra, voiced concerns about the IT Rules and questioned the government’s capacity to be an impartial judge in these matters and ensure principles of natural justice.
Mr. Gautam Bhatia submitted, on behalf of the Association of Indian Magazines, that the government must not unilaterally assume the role of the arbiter of truth. He highlighted an indirect coercive aspect in the amendments, where intermediaries risked losing their safe harbour protection for non-compliance with the directions of the fact check unit. This could lead intermediaries to prioritise commercial interests over users’ freedom of speech and expression. He emphasised the potential impact of the rules on free speech in India and the need to safeguard it from undue governmental control.
“‘Information’ will be a narrowly tailored term”
The Union Government made its submissions on September 26 & 27, 2023, through the Hon’ble Solicitor-General. With respect to the position of the fact check units, he submitted that the body will only address content that is patently false, fake, and misleading in government-related matters, claiming that satire and humour remain unaffected. He stated that the rules do not prohibit expressions of opinion or critical analysis against the government, as long as they are not abusive or obscene and that the government’s primary concern is combating false news, especially on anonymous platforms,
The Union Government submitted that the rules aim to protect the fundamental rights of internet users, intermediaries, recipients, the government, and the public, without imposing penalties or criminalising content. It further claimed that for the purposes of the rules, the term “information” was narrowly tailored, focusing only on the data that is capable of being true or false.
“Intermediaries can decide”
During the course of arguments, the Bombay High Court raised a question concerning the need for the amendment to which the Hon’ble Solicitor-General submitted that the amendment was necessary to prevent intermediaries from invoking ‘safe harbour’ protection and stated that these businesses must exercise due diligence given their substantial earnings, and that the anonymous nature of the internet posed challenges for holding intermediaries accountable.
Further, he elaborated on the procedure in which the content was expected to be regulated by the fact check unit. He stated that when an intermediary receives flagged content from the fact check unit, it may exercise three options; first to take down the content, second to put up a disclaimer, or third, to simply ignore the fact check unit’s view. If the matter remains unresolved, Rule 7 of the IT Rules, 2021 empowers courts to examine the matter. The Union Government argued that the fact check unit allows the intermediaries to address falsehoods and offers them a choice to add disclaimers or remove content, with courts having final authority on deciding safe harbour.
The submissions were concluded by stating that the Government can only put forth its view that an information is fake, and the final discretion to take the call will be left to the intermediary.
Subsequently, the Petitioners began their rejoinder submissions, with Mr. Gautam Bhatia arguing on behalf of the Association of Indian Magazines. The matter will next be heard on September 29, 2023, when rejoinder submissions are expected to be concluded. We will provide more updates then.
We are grateful to the Association for Indian Magazines (AIM) for their confidence in us for taking up this importance that goes to the root of online free speech for all Indians. We are grateful to Advocate Gautam Bhatia who led the arguments for AIM, to the team comprising Adv. Aditi Saxena, and the IFF legal team of Advocates Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Radhika Roy and Gayatri Malhotra. We are also grateful to Sr. Adv. Navroz Seervai for his leadership and guidance and to Advocates Arti Raghavan and Meenaz Kakalia.
Important Documents
- Writ Petition in Association of Indian Magazines v. Union of India [Link]
- Writ Petition in Kunal Kamra v. Union of India [Link]
- Written Note filed in Association of Indian Magazines [Link]
- Supplemental Note by Mr. Gautam Bhatia, Counsel for Association of Indian Magazines [Link]
- Skeletal submissions on behalf of Union of India in the matter [Link]
- Reply by Union of India in Association of Indian Magazines v. Union of India. [Link]
- Reply by Union of India in Kunal Kamra v. Union of India. [Link]
- Written Submissions of Union of India in Kunal Kamra v. Union of India [Link]
- Previous blog post on submissions on behalf of petitioners titled, “Updates from the Bombay HC on the Petition Challenging the IT Amendment Rules, 2023” [Link]
This post has been authored by Litigation Intern Yatharth Chugh, and reviewed by Senior Litigation Counsel Tanmay Singh and Associate Litigation Counsel Gayatri Malhotra.