Introduction
This is in continuation to the series on the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“2021 Rules”). This article examines the Rule[1] that proposed the creation of a fact-checking unit (“FCU”) and the subsequent legal challenge before the Bombay High Court, which has led to this specific rule being declared unconstitutional.
In the second part of the series, we had discussed the due diligence obligations imposed on social media intermediaries (“SMIs”) under Rule 3 of the 2021 Rules. Notably, the unamended Rule 3(1)(b)(v) required SMIs to take reasonable steps to not publish any information which knowingly or intentionally communicates any misinformation or information that is patently false and untrue or misleading. While a body akin to the FCU was functioning under the aegis of the Press Information Bureau (“PIB”) with the stated intent of countering the dissemination of fake news related to the government’s affairs,[2] the Central Government amended Rule 3(1)(b)(v) of the 2021 Rules (“Impugned Rule”) to provide for establishing the FCU which would identify if any information related to “the business of the Central Government” is “fake, false or misleading”.[3] For intermediaries failing to make “reasonable efforts” by themselves to not publish any content/information (posted by their users) flagged by the FCU entailed the risk of losing their safe harbour protection afforded under the Information Technology Act, 2000 (“IT Act”).
The constitutional validity of the Impugned Rule was challenged before the Bombay High Court in Kunal Kamra & Ors. v. Union of India & Ors, and on January 31, 2024, the Division Bench of the Bombay High Court rendered a split verdict,[4] resulting in a reference being made to a third judge. Meanwhile, on March 11, 2024, the Bombay High Court allowed the Union Government to notify the FCU during the pendency of the challenge. Interestingly, while the Ministry of Electronics and Information Technology (“MeitY”), on March 20, 2024, notified the FCU constituted under the PIB as the FCU for the purposes of the Impugned Rule,[5] the Supreme Court by anorder dated March 21, 2024,[6] stayed this notification till the hearing of the petition pending before the Bombay High Court, citing that there were serious implications on the right to freedom of speech under Article 19(1)(a) of the Constitution of India (“Constitution”).
Finally, on September 20, 2024, the Bombay High Court in Kunal Kamra & Ors. v. Union of India & Ors.,[7] ruled the Impugned Rule as unconstitutional. In this part, we analyse the judgments delivered by the Hon’ble Bombay High Court and its implications.
Contention of the parties
The Petitioners contended that the Impugned Rule violates Article 19(1)(a) of the Constitution, as the right to free speech does not mean the right to receive “true and accurate information”. Establishing the FCU allows the Central Government to make a unilateral determination in its own cause, thereby violating Article 14 of the Constitution. Further, the Impugned Rule will result in a “chilling effect” on free speech, as the SMIs may remove content flagged by the FCU to avoid losing their safe harbour protection.
Conversely, the Union Government asserted that the public has the right to receive true and accurate information and the Impugned Rule merely removes the automatic safe harbour protection under the IT Act. Moreover, in the absence of actual evidence, it cannot be assumed that the Impugned Rule causes a “chilling effect” on free speech.
Impasse resulting from the Division Bench’s Split Verdict
In the first judgment, Justice G.S. Patel held that the Impugned Rule is ultra vires Article 14, Article 19(1)(a), read with Article 19(2) and Article 19(1)(g), read with Article 19(6). It was reasoned that the safe harbour protection for intermediaries (such as SMIs) is crucial for free speech, and the Impugned Rule results in pre-publication censorship imposed through indirect Government takedown requests. The Judge further observed that the Impugned Rule causes a chilling effect on free speech, is vague, disproportionate and lacks adequate safeguards against its abuse.
Dissenting from these views, Justice Neela Gokhale sought to uphold the constitutionality of the Impugned Rule reasoning that it applies only to cases where users intentionally share false content related to the Government’s business and hence, merely removes the immunities granted to SMIs under Section 79 of the IT Act. However, the Hon’ble Judge read several safeguards into the Impugned Rule that are not expressly recorded. The foundational difference between the opinion of the two judges was on the interpretation of the Impugned Rule. While one view was premised on a literal interpretation of the Rule to hold that it is vague, arbitrary and violates Articles 14, 19(1)(a) and 19(1)(g) of the Constitution, the conflicting view sought to provide a harmonious interpretation to the Impugned Rule and introduced safeguards to prevent its abuse, i.e., “reasonable effort” did not mean “take down” as the only option, as the SMIs could also issue disclaimers to avoid losing their safe harbour protection.
The tie-breaker opinion
At the outset, Justice A.S. Chandurkar reiterated that the present case does not pertain to a citizen’s basic right to know about the affairs of the government. The right to free speech does not mean the right to truth and considering the settled position of law, the Impugned Rule imposes a restriction that is beyond the scope of the restrictions envisaged under Article 19(2). On the violation of Article 19(1)(g), Justice Chandurkar concurred with Justice Patel’s observations that a challenge to the Impugned Rule under Article 19(1)(g) is maintainable, as there is no justification for subjecting information published in digital media to the Impugned Rule, while exempting print media from the same. The lack of clarity on what constitutes as “false, fake or misleading” information, coupled with the fact that the FCU would be constituted by the Central Government, would make the Government an arbiter in its own cause. Further, the mere fact that the FCU’s decision can be challenged before a constitutional court is not an adequate safeguard and consequently, it has been held that the Impugned Rule was in violation of Article 14 of the Constitution.
The expression “knowingly and intentionally” was examined and it was held that the Impugned Rule, without providing any rationale, creates two categories, wherein for information not pertaining to government, the focus is on the user’s awareness of the falsity/ misleading nature of the information, but for information relating to the Central Government’s business, irrespective of the user’s knowledge and intent, if the FCU identifies any information as “fake or false or misleading”, the SMI may lose its safe harbour protection.
The interpretation that the Impugned Rule could be read down to apply only to false/ fake information, excluding misleading information has not been upheld on the reasoning that each term must be interpreted independently. The mere issuance of a disclaimer would not constitute “reasonable efforts”, sufficient to maintain the SMI’s safe harbour protection. On the Impugned Rule causing a potential chilling effect, being ultra vires Sections 79, 87(2)(z), 87(3) of the IT Act, and not meeting the test of proportionality, Justice Chandurkar endorsed Justice Patel’s views and held that the Impugned Rule ought to be declared unconstitutional.
Concluding Notes
Although ‘misinformation’ and its rampant proliferation through social media platforms is a serious concern, requiring action from SMIs, citizens and the government, there is reason to argue that the judgment of the Bombay High Court is a welcome step, from the perspective of balancing free speech. The judgment, for one, settles the debate over the constitutionality of the FCU, especially when several states[8] have passed orders establishing similar FCUs or Information Disorder Tackling Units for flagging fake/ misleading content relating to the government.
Pertinently, the Supreme Court has transferred all other challenges filed against the 2021 Rules before the various High Courts to the Delhi High Court[9], which will first take up the challenge to Part III of the 2021 Rules, i.e., the Code of Ethics for digital media. It remains to be seen if Justice Chandurkar’s “tiebreaker” opinion will have a bearing on the constitutionality of the 2021 Rules, as a whole.
Meanwhile, the government’s efforts to regulate social media and online discourse has been expanding, especially in the context of the Broadcasting Services (Regulation) Bill, 2024 (“Broadcasting Bill”),[10] which was introduced, but reportedly withdrawn in August, 2024.
In its essence, the Broadcasting Bill seeks to regulate content available on Over-the-Top (‘OTT’) platforms and SMIs. In its last known version, the Bill expanded the scope of intermediaries by empowering the Central Government to prescribe different due diligence guidelines for intermediaries. The Bill also penalises failure to comply with due diligence obligations by lifting the safe harbour protection afforded to intermediaries.
More recently, the Ministry of Defence has issued a notification,[11] in pursuance of Section 79 of the IT Act, read with Rule 3(1)(d) of the 2021 Rules, designating the Additional Directorate General of Strategic Communication in the Indian Army, as the nodal officer. Accordingly, this officer can now directly issue takedown notices to SMIs, in relation to unlawful information pertaining to the Indian Army and its components. Unlike the FCU, which was only tasked to flag the information as “fake, false or misleading”, the nodal officer is empowered to issue takedown notices as well.
With all these developments, the delicate balance in the manner of regulating online discourse, while preserving fundamental rights is bound to be tested further, inevitably bringing back the focus on constitutional courts.
[1] Rule 3(1)(b)(v), 2021 Rules.
[2] The information can be found at: https://pib.gov.in/aboutfactchecke.aspx?reg=3&lang=1; last visited on October 16, 2024.
[3] Government of India, Ministry of Electronics and Information Technology, G.S.R. 275(E) (April 6, 2023), 244980-Gazette Notification for IT Amendment Rules, 2023- relating to online gaming & false information about Govt. business.pdf (meity.gov.in).
[4] Kunal Kamra & Ors. v. Union of India & Ors., 2024 SCC OnLine Bom 360.
[5] Government of India, Ministry of Electronics and Information Technology, No. AA-11011/2/2024-CL&ES (March 20, 2024). https://www.meity.gov.in/writereaddata/files/Gazette%20Notification_0.pdf.
[6] Editors Guild of India v. Union of India & Ors., 2024 SCC OnLine SC 1537.
[7] 2024 SCC OnLine Bom 3025.
[8] Government of Karnataka, Department of Electronics Information Technology, Biotechnology and Science & Technology, https://itbtst.karnataka.gov.in/storage/pdf-files/EoI.pdf; Government of Tamil Nadu, Tamil Development and Information (Advt) Department, G.O. (Ms.) No.190 (October 6, 2023) https://www.thehindu.com/news/national/tamil-nadu/67488313-TN-Fact-Check-Unit-G.O..pdf.
[9] Union of India & Anr. v. Foundation for Independent Journalism & Ors., T.P. (C) 997 of 2021; See also: Foundation for Independent Journalism & Ors. v. Union of India & Anr., W.P. (C) 3125 of 2021.
[10] Government of India, Ministry of Information and Broadcasting (November 10, 2023) https://mib.gov.in/sites/default/files/Public%20Notice_0.pdf.
[11] Government of India, Ministry of Defence, S.R.O. 136(E) (October 24, 2024), egazette.gov.in/(S(b1bvnq3sop12xjpl4zqhhdbv))/ViewPDF.aspx.