The Bombay High Court reiterated its remark that the government cannot be the final arbiter of what is true or false. File
| Photo Credit: The Hindu
Solicitor General Tushar Mehta argued that once any post with ‘fake and false facts’ is flagged then the intermediaries have the options of removing or putting a disclaimer on the content
The Bombay High Court on Wednesday said if a social media intermediary takes down something that the government body says is misleading it would result in unreasonable restrictions on freedom of speech and expression.
For the second consecutive day, a division bench of Justices Gautam Patel and Neela Gokhale was hearing a bunch of petitions filed by political satirist Kunal Kamra, Editors Guild of India and the Association of Indian Magazines and certain regional channels. All of them above petitioners are challenging the Constitutional validity of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.
The new Rules require social media intermediaries to censor, or otherwise modify, content that relates to the Central Government if a government mandated fact checking unit (FCU) directs them to do so.
The Court reiterated its remark that the government cannot be the final arbiter of what is true or false.
Solicitor General of India Tushar Mehta, arguing on behalf of the Ministry of Electronic and Information Technology, said that after the government’s FCU has flagged something as fake, false or misleading, the social media intermediary will have the option of either pulling it down or putting a disclaimer regarding the same. He argued that the government would not be an arbiter, it will only be the Court that will decide.
The Court said, “If the government body says something is misleading. The intermediary will save itself and hence take down the content on its own but this will result in unreasonable restriction, or have a chilling effect under Article 19 (freedom of speech and expression) of the Constitution of India.”
Advocate Gautam Bhatia, appearing for Association of Indian Magazines, argued on the issue of compulsion and restrictions, the chilling effect and proportionality of the IT Rules.
The Court commented that individuals and organisations who are users have come to Court but none of them are intermediary. It is the social media intermediary that needs to take efforts to not lose safe harbour while hosting information which is misleading, fake or false, the Court said.
In the last hearing Mr. Mehta had said the Rules are intended to regulate only false and misleading information, and “not for ideas, opinions, or the expression of views, and humour”.
Senior advocate Navroz Seervai, appearing for Mr. Kamra, contended that the FCU may not know the context of the statement and brand it as misleading, and all the consequences will follow. The hearing is set to continue on September 29.