It is troubling that the recently amended Information Technology (IT) Rules, which proposes action against fake news on social media against the government, does not provide any recourse to the person whose post has been removed or whose account suspended by a social media platform pursuant to a flag off from the proposed Fact Checking Unit (FCU), the Bombay High Court said.
A division bench of Justices Gautam Patel and Neela Gokhale asked where could such a person go in a situation when his/her post is unilaterally closed with no recourse available. “It may or may not have a chilling effect but still needs to be considered,” Justice Patel remarked.
The HC is hearing a batch of petitions challenging the amended IT rules, including a provision for an FCU to flag fake or false or misleading online content related to the business of the government. The petitions filed by stand-up comedian Kunal Kamra, the Editors Guild of India and the Association of Indian Magazines have sought directions against the framing of the rules calling them “arbitrary, unconstitutional”.
Solicitor General Tushar Mehta, appearing for the Union government, submitted that once the FCU flags off any post with fake and false facts then the intermediaries have the options of verifying it and removing the content or putting a disclaimer on the post. Mehta said: “The intermediaries retain their safe harbour or immunity by doing so. If the intermediary does nothing then the aggrieved party (either the person or the government) can move court against the post and take the intermediary too to court. The court would then decide the liability.”
SG clarified that the intermediaries do not have the option of not doing anything once a content has been flagged off by the FCU. The intermediary must act either way to retain their safe harbour or immunity. “There is no compulsion to remove but then the intermediary loses its safe harbour,” he emphasised.
The court then asked whether the Rules provided for a remedy to the person whose post has been flagged off.
“If the intermediary complies and removes the content…where does the user (person whose post has been removed or account suspended) go? There is no recourse for the user…and that is what is troubling us…the user has no recourse…none,” the bench underlined.
It even questions if the government authority, FCU in this case, has the authority to decide what is the truth.
Noting that there is a lack of process in the entire mechanism, the court said: “What is the truth? We have lower courts to determine this…even courts cannot answer this for sure…courts arrive at some level of truth because there is a process in place. This process has been defined in our system. What lacks here is this process.”
The judges agreed with the Centre’s argument that there are several fake and false facts being spread on the internet which was a problem not just for the government but also for the society at large. It added that the compulsion by the FCU that it has determined the issue is a problem.
The judges again stressed on the fact that although lt has been hearing arguments on the issue for several days, the Union government has not clarified what necessitated the amendment now.
Mehta further told the court that the government was not going to be the arbiter on the issue of whether a post contains fake and false facts.
The HC will continue hearing the matter on September 29.