Amended IT rules offer remedy to victims of fake news: Centre to HC

Solicitor general Tushar Mehta on Wednesday told the Bombay high court that the recent amendment to the information technology rules offered a grievance redressal mechanism to the victims of fake news, and false or misleading information on social media platforms.

He was arguing on behalf of the Central government during a hearing on a bunch of petitions filed by satirist Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines. The petitioners had challenged rule 3(i)(II)(A) and (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023.

Section 79 of the Information Technology Act grants conditional immunity to the intermediaries (social media platforms) and as such they cannot be proceeded against in a court of law for third-party content, data, and information posted on their platforms, Mehta told a division bench of justice Gautam Patel and justice Neela Gokhale.

He said now rule 3(2) of the amended rules would help the victims, who had to deal with the person who posted, published, transmitted etc. a fake or false content about them on a social media platform, get their grievances resolved. “The resolution can either be by taking down the fake content, or by putting a disclaimer.”

If the intermediary did not resolve the issue, the solicitor general said, an aggrieved party could approach the court and then the intermediary would have to, under rule 4(2), divulge the identity (of the user posting the content in question) under the court’s order. In the case of a fake or false content about the Central government, the same procedure would apply, he added.

The bench agreed that serious moral and ethical questions arose because of the fake and false content on social media, especially in view of latest photoshopping techniques. The only point, the HC said, was that the compulsion by the proposed fact-checking unit (FCU) that a particular content was fake, and the intermediary would have to take that down. “There is no other choice.”

The HC also expressed displeasure that the amendment offered no recourse to a person whose social media post had been removed or account had been suspended after being flagged by the FCU.

The petitioners have claimed that the amended IT rules cast an obligation upon intermediaries to make “reasonable efforts to cause users to not publish, display, upload or share information in respect of business of the Central government that is identified as fake, false or misleading by the FCO as the ministry (ministry of electronics and information technology) may specify”.

According to Kamra, the rules infringe the freedom of speech and expression, as the term ‘business’ is broad and vague. The vague term had been used to “create a chilling effect where intermediaries will take down any information flagged by the FCO rather than risk losing safe harbour”, his petition said.

The rules, the satirist further said, made the Central government the sole arbiter of truth in respect of its ‘business’ obliging private parties to impose that version of truth on all users. “This provision, therefore, makes the government the sole gatekeeper of the marketplace of ideas and constitutes a clear breach of Article 19(1)(a) (freedom of speech and expression).”