Why do you need fact-check unit when you have PIB…Centre silent: Bombay HC

The bench also questioned the Centre’s silence on the need for amended Rules – these have been challenged by standup comedian Kunal Kamra, Editors Guild of India, New Broadcast and Digital Association and Association of Indian Magazines.

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 questioned whether the mechanism of the Press Information Bureau (PIB), that has been in existence for long, is so inadequate that it requires an amendment to include the FCU.

Kamra’s plea challenged 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.

Last month, the Centre told the bench that identification of misleading or false content by the FCU of the Ministry of Electronics and Information Technology (MeitY) would not lead to its automatic taking down; the aggrieved party would be entitled to pursue legal remedy and the competent court would be the final arbiter in the matter.

On Thursday, Senior Advocate Navroz Seervai, representing Kamra, claimed that the Rules were amended by the government to show “it is my way or the highway”. He said the government, in a way, is saying that it will ensure that social media covers only what it wants and everything else is censored.

“It wants to take the role of parents or nanny of the public,” Seervai said, adding that the petitioner did not understand why the government was underestimating the intellect of citizens by being the “nanny state” under the garb of shielding public from what is bad and distasteful.

Responding to Kamra’s claim that the impugned Rules violated fundamental rights of citizens, the bench said, “No matter how laudable or high the motives are, if the effect is unconstitutional then it has to go.”

The bench said that while the Centre said that the PIB has existed for a long time to keep a check on fake news, it could not explain whether the existing mechanism was inadequate and what was the need for the FCU.

“Whenever PIB issues a clarification, every news channel and paper carries it. Where do we find explanations in replies (by authorities) as to why that structure is inadequate and why you (government) need (an) amendment? Affidavit filed by the Centre is silent on it,” Justice Patel said.

“This is actually the case because you do not understand the extent of the realm, reach and power of technology. This would not have been necessary in case of print. You just do not understand what the Internet can do. Governments cannot do away with the Internet as that is where they carry out their business. But it comes with its limitations. This is more like the fear of the unknown. And this is why the government has come up with this (FCU). Whether it is legitimate or not is what we have to decide,” the bench said.

Seervai said the government cannot act as a judge to ascertain veracity of any information available on social media, where some people including satirists, journalists have been shunned for airing their views.

He said that the intermediaries, which are big corporations, are not concerned with the information they host.

The bench said, “Therefore, they would just comply with the government’s directions. This is why no intermediary company has filed a petition against the Rules.”

It questioned whether online sites hosting critical comment on statements made on the campaign trail in the 2024 elections will lose safe harbour if the government’s FCU flags the content as false and if the hosting site refuses to remove it.