Who will fact-check FCU: Bombay HC to Govt on new IT rules

A division bench of Justices Gautam S Patel and Neela K Gokhale has been hearing petitions by stand-up comedian Kunal Kamra, Editors Guild of India and others. According to the impugned 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).

Senior advocate Arvind Datar and advocate Gautam Bhatia representing News Broadcasters and Digital Association and Association of Indian Magazines, respectively argued that less restrictive alternative grievance redressal system was available to deal with fake or false content on social media and ‘fast-tracked arbitrary and unconstitutional method’ is not required for the same.

The bench said that while there is a filtration process available for offline content, there is no such fact-checking for social media intermediaries as yet and the same may be required at some level. There is an assumption that what the FCU says is undeniable, incontrovertible and the ultimate truth, the bench said, adding that the Rules are silent on boundaries or limits of what is fake or false.

The court, while referring to ‘surprising’ examples in Centre’s affidavit, questioned if an author of online content predicts certain consequences of the implementation of a law and puts forth opposing views to the same, can the same be taken down as misleading content.

The bench said in case of Pulwama incident referred to in affidavit, if someone speculates what happened, whether the same automatically becomes fake, false or misleading. It also asked if an advertisement by the Opposition in a newspaper against government policies is reproduced on social media, whether the same can be termed misleading against business of the government.

The court questioned as to how the Centre can “arrogate to itself the right to decide what is fake, false and misleading without giving an opportunity to defend the content”. “No person is saying that he or she has the right to lie. All that the citizens are saying is that they have the right to defend correctness of their position or statement,” Justice Patel said.

The bench said that even the courts can only pass order on likelihood or probability of the content being fake or false. “..Nobody else has that authority to pronounce order except for court or authority functioning as court. Here the power is given to FCU to identify what is fake, false. Whether the court can ever do this? They can get into probabilities of it being fake,” Justice Patel said.

He went on to add, “In a democratic process, the essence of discourse is, the government is as much a participant as a citizen. It is not a repository of truth that cannot be questioned and it is a fundamental right to doubt, to question, demand answers from the government and it is the duty of the government to respond, that’s the government process we have got.”

Solicitor General Tushar Mehta for the Centre is likely to respond to the pleas from July 27. The Centre told the HC the FCU will not be notified till July 28.