The Bombay High Court (HC) on Wednesday gave a split verdict on petitions challenging the amendments to the Information Technology Rules that allow the Centre to set up a ‘Fact Check Unit’ (FCU) to keep a tab on ‘fake news’ that are frequently spread on social media.
“There is a disagreement between us; we have passed separate judgments with divergent views. We were not able to concur,” a division bench led by Justice G.S. Patel said. Justice Patel called the amendment ‘unconstitutional’ while Justice Neela Kedar Gokhale upheld the validity to the proposed amendments.
The bench has instructed its registry to present the pleas before Chief Justice Devendra Kumar Upadhyaya for referral to a third judge.
Pertinently, the FCUs, which are to detect fabricated news about the government posted online, will not be notified for 10 days, the Centre told the high court.
“The impugned amendment makes the government’s chosen FCU the sole authority to decide what piece of user-content relating to the undefined and unknowable ‘business of the government’ is or is not fake, false or misleading,” Justice Patel held in his order on Wednesday. “The lack of definition of these words: business of the government; fake; false; and misleading makes the amendment both ‘vague and overbroad’.”
He added that “there is little achieved in saying that the guidelines will come later. There is no assurance of that either and they should have been in place by now if there was such an intent.”
However, Justice Gokhale held: “No content is restrained by the impugned rule, unless the content is patently false, untrue and is communicated with ‘actual malice’, i.e., with knowledge of its falsehood and with reckless disregard for the truth, and is deceptively passed off as a statement of truth. In this context, the impugned rule does not bring any chilling effect on the right of either the intermediary or the user.”
The decision comes after the Centre announced on 6 April amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including an FCU to identify misleading online content related to the government.
Aggrieved by the notification, stand-up comic Kunal Kamra moved the Bombay HC on 10 April, petitioning that the new rules announced by the Centre could potentially lead to his content being ‘arbitrarily’ blocked or his social media accounts being suspended or deactivated, harming him professionally. Following Kamra’s petition, a slew of petitions were filed by News Broadcasters and Digital Association, and the Association of Indian Magazines in the same matter.
Last year, the Bombay HC said that in a democratic process, it is a fundamental right of citizens to doubt, question, demand answers from the government and the government is duty-bound to respond to the same. The bench had said the government is not a “repository of truth that cannot be questioned.”
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Published: 31 Jan 2024, 11:45 PM IST