Amended IT rules against fake news give unfettered power to government authority: Bombay HC

MUMBAI: The Bombay High Court on Tuesday said the recently amended Information Technology (IT) Rules against fake news on social media give “unfettered power” to a government authority in the absence of “guidelines and guardrails”.

The Union government, on the other hand, assured the Court that the Rules were not meant to curb free speech or humour and satire targeting the government, and did not bar anyone from criticizing even the prime minister.

A division bench of Justices Gautam Patel and Neela Gokhale was hearing petitions filed by stand-up comedian Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines against the Rules, terming them arbitrary and unconstitutional and claiming that they would have a chilling effect on the fundamental rights of citizens.

The court on Tuesday also sought to know what necessitated the amendment and provision for a separate Fact Checking Unit (FCU) when the Press Information Bureau (PIB) is already doing fact-checking on social media.

The objective was not to curb free speech, opinion, criticism or satire against the government or even the prime minister but to create a balancing mechanism to tackle a medium that was “uncontrollable and uncontrolled”, he said.

The Rules have nothing to do with humour or satire, whether it is to the liking of the government or a political party, as far as the content does not cross the line of what is considered obscene or vulgar, the solicitor general said.

When Mehta reiterated that the FCU would be only checking fake and false facts and not opinion or criticism, the court asked how can it be said that the government’s truth was the final truth.

The bench further noted that the term “government business” in the Rules was largely undefined.

Mehta responded that it was a well-demarcated term.

The court noted that there must be some guidelines in place for the Rules. Without guidelines and guardrails, this is an unfettered power. The funneling of power to determine what is true to a government authority, Justice Patel said.

The court further noted that while the government was saying that the Rules apply only to fake news, the Rules, on the face of it, say information and not facts.

The hearing will continue on Wednesday.

In April this year, after the petitions were filed, the Union government had told the court that it would not notify the Fact Checking Unit till July. Last month, the statement was extended till October 3.

On April 6, 2023, the Union government promulgated certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including a provision for a Fact Checking Unit to flag fake, false or misleading online content related to the government. (photo credit -The Wire)