New Delhi: The Bombay high court on Friday said the amended IT Rules that include the provision for a fact check unit (FCU) that will flag “fake, false or misleading” content on social about the government might be “excessive”, quipping that one cannot “bring a hammer to kill an ant”.
The court is hearing petitions filed by the stand-up comedian Kunal Kamra, and media bodies the Editor’s Guild and the Association of Indian Magazines against Rule 3(i)(II)(C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 – commonly known as the new IT Rules – that gives powers to the FCU.
The rules require social media intermediaries to censor, modify or even take down content flagged by the FCU. That the unit has been given a wide berth to determine what is “fake news” has concerned media associations, which say the powers may be misused to restrict even legitimate criticism of the government.
The bench of Justices Gautam Patel and Neela Gokhale, which is hearing the petitions, also orally remarked that the government is not a “repository of truth that cannot be questioned”. According to LiveLaw, Justice Patel said:
“In a democratic process, the essence of which is discourse, government itself is a participant. It is not repository of truth that cannot be questioned. Forget the fundamental right to lie, it is the citizens right to doubt, question the government and it has to answer. This power here [of FCU], it’s very difficult”.
The judge also wondered “who will fact-check the FCU”, adding that if the Press Information Bureau posts some news which is fake, the rules do not provide for any action.
Also Read: PIB Fact-Check Unit Claims Our Article on Its Work Is ‘Misleading’. Five Reasons Why It Is Wrong.
According to The Hindu, the court also remarked that it could not understand the concern that necessitated the amendment. “What is the anxiety behind it? What was the need? I still don’t know,” the bench said.
Advocate Gautam Bhatia, who is representing the Association of Indian Magazines, asked, “Does the constitution authorise the government to classify speech based on values? Does the constitution authorise the government to arbiter what is true and false? Are the impugned amendments intra vires the parent statute? The answer to all is no.”
Senior advocate Arvind Datar drew the court’s attention to the lack of a clear definition of “fake and misleading”. “I want to know what the boundary is. I do not know what is being tested under Article 19(2) of the Constitution,” the court responded.
The bench also said that no person is claiming a “fundamental right to lie” but citizens have a right to defend the correctness of their statement.
The court had on Thursday expressed concerns about the amended Rules singling out digital content, observing that the same news could also be published in print media – in which case there is no provision to tackle it.
The next hearing will be on July 27, when solicitor-general Tushar Mehta will start his arguments on behalf of the Union government.