The Bombay High Court on Wednesday said it was troubled by the fact that the recently amended IT Rules to curb online fake news against the government offer no recourse to a person whose social media post has been removed or account suspended after being flagged by the proposed Fact Checking Unit (FCU).
A division bench of Justices Gautam Patel and Neela Gokhale questioned where such a person would go when their 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 said.
The bench was hearing arguments on a bunch of petitions challenging the amended Information Technology (IT) Rules. Stand-up comedian Kunal Kamra, the Editors Guild of India and the Association of Indian Magazines have filed petitions in the HC against the Rules, terming them arbitrary and unconstitutional and claiming that they would have a chilling effect on the fundamental rights of citizens.
Solicitor General Tushar Mehta on Wednesday argued that once the FCU, to be set up under the Rules, flags 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.
“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,” Mehta said.
Mehta clarified that the intermediaries do not have the option of not doing anything once content has been flagged 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 said.
The bench then questioned if a remedy was available under the Rules to the person whose post has been flagged.
“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 said.
The court also questioned if a government authority, in this case the FCU, has the authority to decide what the truth is.
“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,” Justice Patel said.
The bench noted that it agrees with the Centre’s argument that there are several “fake and false facts” being spread on the internet and this was a problem not just for the government but also for society at large.
“It raises several serious and ethical questions which can be debated. The only question is the compulsion by the FCU that says it has determined, not a court, but it has determined something is fake and false,” Justice Patel said.
The bench reiterated that although it has been hearing arguments on the issue for several days, one thing that has not yet been clarified by the Union government is what necessitated the amendment now.
“I still don’t get why the Press Information Bureau (PIB) which has until now been doing the job of flagging off fake news on social media platforms was held insufficient…what warranted this amendment and a FCU…why was the PIB held as inadequate,” the court queried.
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 government does not seek to be the arbiter. Only the courts can do so,” he said.
The bench will continue hearing the matter on September 29.
In April this year, after the petitions were filed, the Centre had told the court that it would not notify the FCU till July. The statement came to be extended from time to time when the court started hearing arguments in the pleas. Last month, the statement was extended till October 3.
On April 6 this year, the Union government promulgated certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including a provision for an FCU to flag fake, false or misleading online content related to the government.
The three petitions sought the court to declare the amended Rules unconstitutional and direct the government to restrain from acting against any individual under the Rules.
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