‘Sort of diktat’: Bombay HC says amended IT rules against fake news doesn’t give opportunity to justify content

The bench said that the effect of the amended Rule, which does not grant opportunity to put forth defence to the aggrieved, “kicks in automatically like a sort of a diktat.”

The court also said that while the Centre claimed that by framing such Rules, it is ‘in loco parentis’ or acting in the place of a parent, then why is it restricted only to the ‘business of the government’ . Why the Centre is not acting as ‘in loco parentis’ for every fake and misleading information or content posted on social media as the internet is “fertile ground for hoaxes” and misuse, as everyday messages are received warning people not to use certain apps or not to open any unknown links.

The court also said that while the Centre is not applying the Rules to print media and if there is same content in both print and digital media owned by the same organisation, as to how the content in print remains without interference by FCU and the content on digital platform attracts adverse action.

The court also asked whether the FCU exists for print media and if it has not been done for the print media until now, what is the government intending to do by forming it for the digital media.

When counsel for Editors Guild of India (EGI) argued that there is no answer to such a “dichotomy” in the Centre’s reply, the court said the same “stared in its face.”

A division bench of Justices Gautam S Patel and Neela K Gokhale has been hearing petitions by stand-up comedian Kunal Kamra, EGI and News Broadcasters and Digital Association and Association of Indian Magazines.

The pleas challenged the constitutional validity of Rule 3 (1) (II) (A) and (C) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, stating that this would, in effect, amend Rules 3 (1) (a) and 3 (1) (b) (v) of the IT Rules, 2021, violating several Supreme Court judgments.

According to the IT rules amended in April this year, content marked by the FCU as “fake or misleading” will have to be taken down by online intermediaries if they wish to retain their “safe harbour” (legal immunity against third-party content).

The bench, while hearing arguments by advocate Shadan Farasat for the EGI, sought to know as to what constituted ‘government business’ under the Rules.

The bench said, “…Does a particular political action, for example, in Maharashtra, of one party moving to the other.. Is it part of the business of the government?”

Farasat argued that the Amended Rules give the Central government “a power to determine monopolistically as to what information is required to be circulated about its functioning.”

“I find it remarkable that there is a consequential effect of the Rule, without any show cause notice or defence and that is immediate deprivation of safe harbour. There is no opportunity for justification or being heard. It just kicks in automatically like a sort of diktat. Default in compliance with directive strips you off safe harbour. Your (intermediary) relief under 79 (1) (exemption from liability of intermediary in certain cases) of the Information Technology (IT) Act goes out completely,” Justice Patel said. “It is a gun to my client’s head but nicely concealed,” Farasat responded.

Justice Patel on a lighter vein said to EGI counsel, “The government has a mobile app Kavach which is supposed to provide citizens security cover. This (amended IT Rules) is removing your Kavach (protective cover) …that is what is happening.”

After Farasat argued that the government is trying to sanitise political discourse by imposing such rules while citizens are required to be fully informed to engage in democratic polity, Justice Patel said “democracy also involves the right to have informed choice.”

The court will continue hearing the plea on Friday.