If not for print, why a fact check unit only for internet, Bombay HC presses Centre

The Bombay high court on Thursday asked the Central government to clarify why it was planning to constitute a fact checking unit (FCU) for online content when there was no such regulatory mechanism in place for print media which too disbursed information against the government and its policies.

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The court also wanted to know why there was no provision in the amended Information Technology (IT) Rules for the FCU to issue a show cause notice to the aggrieved or affected person to justify or defend the content they had posted on the internet.

The HC posed these questions while hearing a bunch of petitions filed by satirist Kunal Kamra, the Editors Guild of India (EGI), the Association of Magazines, and the News Broadcasters and Digital Association, which had challenged the amendment that empowers the FCU to identify content as “fake or misleading” and direct the social media platforms to take it down.

Senior advocate Navroz Seervai, representing Kamra, told a division bench of justice Gauatm Patel and justice Neela Gokhale that he had concluded arguing on the chilling effect that the FCU would have on the internet users and advocate Shadan Farasat would commence arguments on behalf of EGI.

The amended rules, Farasat claimed, gave the Central government “a power to determine monopolistically as to what information is required to be circulated about its functioning”.

This prompted the bench to ask as to what constituted “government business” under the amended rules. Referring to the current political scenario wherein members of one party moved to another, the court sought to know if it was part of the government business as well.

The bench further said while the Centre claimed that the FCU would play the role of in loco parentis (in the place of a parent) why it was only restricting itself to the government business while there was a huge amount of fake or misleading information being posted on social media. The internet was a fertile ground for hoaxes, and it was being misused, the court added.

The court then raised a question if an FCU existed for print media and if it had not been done until now, then what the government was intending to do by forming it only for the digital media. If the FCU could not act against a content that appeared on the print, how it could take action against the same content that was posted online, the bench asked.

Farasat said there was no answer to such a “dichotomy” in the Centre’s reply.

Referring to the absence of any provision in the amended rules which made it incumbent for the FCU to issue a show cause notice, the bench said, “I find it remarkable that there is a consequential effect of the rules, without any show cause notice or defence and that is immediate deprivation of safe harbour (legal immunity against third-party content). There is no opportunity for justification or being heard. It just kicks in automatically like a sort of diktat. Default in compliance with a directive strips you off the safe harbour. Your (intermediary) relief under 79 (1) (exemption from liability of intermediary in certain cases) of the Information Technology Act goes out completely.”

Also read: On reform of IT rules, Bombay HC questions the authority of government's fact checking unit

Hearing on the pleas will continue on Friday.

The petitioners had challenged the constitutional validity of 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.