The recently amended Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 to identify and act against fake news may be “excessive” but one cannot take a hammer to kill an ant, remarked the Bombay High Court on Friday.
A division bench of Justices Gautam Patel and Neela Gokhale also remarked it failed to understand why such absolute power was given to one authority to decide what is fake, false or misleading.
FCU speaks the truth
“There is an assumption that what the FCU says is undeniably the ultimate truth. We are also trying to understand who will fact check the fact check unit (FCU)?” asked Justice Patel.
The HC was 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 sought directions against the framing of the rules calling them “arbitrary, unconstitutional”. The pleas contend that it would have a “chilling effect” on the fundamental rights of citizens.
The bench remarked: “In the democratic process, the essence of discourse is that the government is as much a participant as a citizen. It is not a repository of truth that cannot be questioned. It is a fundamental right to doubt, to question, to demand answers from the government and it is the duty of the government to respond.”
During the hearing on Friday, advocate Gautam Bhatia, appearing for the Association of Indian Magazines, argued that there are less restrictive options available to keep a check on fake content on social media.
The bench said that there was some filtration process in offline content, but there was no filter or fact checking on social media. However, it added the amendment was “excessive”.
Hammer not needed to kill ant
“Leading newspapers have the concept of fact checking of print. What we are speaking about is fact checking of social media. There is no fact checking (of social media). Somebody has to do some level of fact checking of social media. You (petitioners) are right that this (Rules) is excessive. You don’t need a hammer to kill an ant," Justice Patel said.
The bench said, keeping the excessive aside, it is not yet able to understand what was the need for this amendment to the IT Rules. “Leaving this excessive part aside, I still don't understand what was the concern that necessitates this amendment. What is the concern that necessitates this amendment? What is the anxiety behind it? I still do not know,” Justice Patel added.
The judge further added that no person is claiming that there is a fundamental right to lie and all a citizen is saying is that they have a right to defend the correctness of their statement. On the internet everything and everyone is a date and binary and a person can be anything they want and this was not necessarily impersonation.
The bench further said that the Rules are also silent on the “boundaries” of what is fake, false, and misleading.
Questioning the ultimate authority of the FCU to decide on what is fake, false and misleading, Justice Patel said: “I find it difficult that the Rules give the Fact Checking Unit absolute power to decide that this is fake and this is misleading. This is completely binary. According to me, except a court of law, nobody has the authority to pronounce what is true and false. Even a court only says probably this may be the truth and probably this is false.”
Government has PIB
Without the amendment, the government has the Press Information Bureau (PIB) that regularly posts on social media when there is any false or fake content, the bench noted. “Is it the government's case that if not for the amendment the social media intermediaries will run amok?” asked Justice Patel.
The petitioners concluded their arguments. Solicitor General Tushar Mehta will argue on behalf of the Centre on July 27. Meanwhile, the Centre continued its statement of April that it will not notify the FCU till July 28.