IT rules that empowers Centre to fact-check SM posts, challenged in HC

A petition has been filed in the Bombay High Court challenging the recent amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021).

Filed by stand up comedian, Kunal Kamra, the petition challenges the amendments, specifically to Rule 3, which provides that the Central government can notify a fact-checking body which is empowered to identify and tag what it considers false or fake online news with respect to any activity to the Central government.

The telecom service providers and social media intermediaries will then have have to take action against such content failing which they would lose the safe harbour protection under Section 79 of the Information Technology Act.

Kamra in his petition challenged the revised Rule 3(1)(b)(v).

A Division Bench of Justices G S Patel and Neela Gokhale asked the Centre to respond on whether there was any factual background or reasoning that necessitated the amendment.

"Was there any factual background or reasoning that necessitated the amendment? The petitioner (Kamra) is anticipating some kind of impact due to this amendment," the Bench noted.

"They strike at the very rule of law and our democratic polity, as they constitute a direct assault by the respondent on freedom of thought, speech and expression, referred to by the Supreme Court as one of the pillars of our Constitution," the petition said.

Appearing for the petitioner, senior advocate, Navroz Seervai said that the amendments violate free speech under Article 19 and will have a chilling effect and should, therefore be put on hold.

"These rules are there, the chilling effect is already there. The rule is enough to chill people. After publication of this notification, I am liable to fact checking committee. I will not have say when it is retrospectively applied," Seervai said.

He also underlined that the identification of what is fake and false news cannot be done by the government as the same would amount to government being a judge in its own cause. This would be violative of the principles of natural justice, he said.

"This identification cannot be by the government itself. There cannot be restriction on Article 19 at all. The rules do not come within the reasonable restrictions. Reasonable runs through it. This is against interest of public, this is neither reasonable. Look at the natural justice angle, there is no show cause, no notice," he also said.

He pointed out that social media websites have their rules to deal with fake news and the same has various protections.

If those safeguards are taken away, the careers of many who rely on social media, would be finished.

"Social media websites have rules. They give you notice, maybe once, twice, and if your continue repeating then your account is suspended. If it goes on, then your account will be deactivated. Some people have their careers on social media platforms. If that is taken away, their career is finished," Seervai argued.

Additional Solicitor General Anil Singh, appearing for the Centre said that amendments are not yet in forced hence no interim order would be required.

"I am only saying there is no urgency for interim relief. The amendment will kick in only after a notification is issued. Milords may grant me time to file a reply," Singh said.