Bombay HC red line on fake news vs free speech: Judicial review, not Government stamp
The ruling reinforces that independent judicial review and not the Government’s own stamp of disapproval is crucial to determining free speech from fake news. If left solely to the Government, it could blur the lines between propaganda and criticism of it.
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The ruling reinforces that independent judicial review and not the Government’s own stamp of disapproval is crucial to determining free speech from fake news. (File)In striking down the Centre’s Fact Check Unit (FCU) to regulate speech on social media as “vague”, and a “disproportionate” incursion on free speech, the Bombay High Court has drawn a red line on Government regulation of online speech.
“The amended Rule seeks to impose restrictions beyond those permissible under Article 19(2) of the Constitution. It also suffers from manifest arbitrariness…,” the High Court said.
The Centre’s amended guidelines had raised concern that the FCU would make the Government the “sole arbiter of truth” in respect of any business related to itself. The amendment to Rule 3(1)(b)(v) of IT Rules 2021 essentially expanded the general term “fake news” to include Government business.
“Taking into consideration all aspects including that the basis on which the information with regard to the business of the Central Government is to be identified for being categorised either to be fake or false or misleading, the FCU in a sense is the arbiter in its own cause,” the High Court said.
The ruling reinforces that independent judicial review and not the Government’s own stamp of disapproval is crucial to determining free speech from fake news. If left solely to the Government, it could blur the lines between propaganda and criticism of it.
The Bombay High Court’s decision will also have an impact on similar moves to install fact check units in states such as Karnataka and Tamil Nadu.
Ultimately though, the matter will have to be decided by the Supreme Court at some point. The FCU issue, brought under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, is currently under challenge before the Madras High Court and the Delhi High Court.
In March 2024, the Supreme Court transferred to the Delhi High Court a batch of pleas pending before different high courts across the country challenging the 2021 code. Apart from FCUs, the Code also required social media platforms to set up grievance redress and compliance mechanisms, which include appointing a resident grievance officer, chief compliance officer and nodal contact person.
In September 2021, the Madras High Court stayed the operation of a key provision of the 2021 Rules — the setting up of an oversight mechanism by the Centre. “Prima facie, there is substance to the petitioner’s grievance that the oversight mechanism to control the media by the Government may rob the media of its independence and the fourth pillar of democracy may not at all be there,” the Madras High Court had said.
The 2021 Code formed part of the Centre’s multi-pronged bid to regulate online speech. This, along with the proposed Broadcast Bill, which was withdrawn amidst criticism last month, had widespread ramifications for digital media platforms, too.
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