New Delhi: Comedian Kunal Kamra’s petition in the Bombay high court challenges the April 6 amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 which empowers the Union government to start a separate unit for fact-checking digital media content and to order its removal, if found “fake, false or misleading”. The petition’s challenge is based on grounds of Articles 14, 19(1)(a) and 19(1)(g) of the Constitution, and on the provision being ultra vires Section 79 of the Information Technology Act, 2000.
A bench of the Bombay high court comprising Justice Gautam Patel and Justice Neela Gokhale briefly heard on Tuesday, April 11, the petitioner’s senior counsel Navroz Seervai and the Additional Solicitor General Anil Singh, before asking the Union government to respond to it before April 19. According to Bar and Bench, the judges asked the government to make clear whether there was any factual background or reasoning that necessitated this amendment. The case has been listed next for April 21.
A copy of the petition, which is available with The Wire, throws sufficient light on the possible legal arguments against the Impugned Rules (IR).
The IR in effect amends Rules 3(i)(a) and 3(1)(b)(v) of the IT Rules, 2021 as a result of which social media intermediaries are directed to make “reasonable efforts” to cause their users – through rules, regulations and other policies – not to “host, display, upload, modify, publish, transmit, store, update, or share any information” which is “identified as fake or false or misleading by a fact check unit of the central government in respect of any business of the central government”.
In effect, the IR require social media intermediaries to censor or otherwise modify content that relates to the Union government, if a government-mandated fact-checking body directs them to do so.
Kamra’s petition alleges that the IR are manifestly arbitrary, as they entail the Union government acting as a judge and prosecutor in its own cause, thus violating one of the most fundamental principles of natural justice.
Kamra has argued that the IR are over-broad, vague and constitute unreasonable restrictions to freedom of speech and expression under Article 19(1)(a) of the Constitution by making the state the sole arbiter of truth or falsity of speech.
Section 79 of the IT Act provides for “safe harbour” for intermediaries, who were exempted from liability for any third-party information made available or hosted by them, as long as they observed “due diligence” while discharging their duties under the IT Act, and also observed such guidelines as the Union government may prescribe.
Section 79(3)(b) prescribes that safe harbour would be lost if “upon receiving actual knowledge, or on being notified by the appropriate government or its agency that any information, data or communication link residing in or connected to a computer resource, controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner”.
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In Shreya Singhal v Union of India (2015), the Supreme Court upheld the validity of Section 79(3)(b), subject to the caveat that “the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject matters laid down in Article 19(2)”.
In 2011, the government exercised its powers under Section 87 of the IT Act, and promulgated the IT Rules. Rule 3(4) of these rules required an intermediary to act within 36 hours of receiving “actual knowledge” that information it was hosting was in breach of the law. In Shreya Singhal, the Supreme Court read this down to mean knowledge communicated by way of a court order.
In 2021, the government promulgated sweeping amendments to the IT Rules. These imposed a significant set of obligations upon social media intermediaries, in order for them to maintain their safe harbour.
On May 9, 2022, the Supreme Court issued notice on a petition challenging these Rules, and stayed the proceedings in high courts.
On October 28, 2022, the government passed a fresh set of rules – Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules – which substantively amended the IT Rules of 2021. The amended Rule 3(1)(b)(v), by virtue of the 2022 amendment, obligated intermediaries to make reasonable efforts to “cause” users not to upload or share “misinformation” or “misleading information”.
In his petition, Kamra has contended that the 2023 IR does not specify what counts as a “reasonable effort”.
Chilling effect argument
The chilling effect refers to a scenario where imprecise speech-restricting laws leave a large grey area within which citizens are guessing where the line between legality and illegality lies. Citizens then self-censor even lawful speech, in an effort to stay well clear of the grey area. The result is overregulation and a stifling even of lawful speech.
The imprecision of “in respect of any business” along with the imprecision of “reasonable efforts” shall undoubtedly create a chilling effect where intermediaries will resort to take down of any information flagged by the Union government’s fact-checking unit, rather than risk losing safe harbour, Kamra contends.
IR makes the government the sole gatekeeper of the marketplace of ideas, and constitutes a clear breach of Article 19(1)(a). The IR leave it to the subjective satisfaction of the central government, which is unanswerable to anyone, other than itself, Kamra adds.
The government possesses by far the largest megaphone available in society. A government that is aggrieved by allegedly fake or misleading news about “its business” has access to every available infrastructure, with the largest possible reach, to set the record straight. The well-worn argument – that the remedy to speech is counter-speech – applies with even greater force to the government than it does to individuals, Kamra contends.
Inconsistent with Article 19(2)
It is well settled that in order to restrict speech, no grounds outside Article 19(2) could be imported into its text.
Even if the IR does fall within the scope of Article 19(2), it fails the test of proportionality, Kamra has argued. One of the limbs of the proportionality standard requires that the “least restrictive” alternative be chosen. There are a range of less restrictive alternatives – such as government-issued clarifications or corrections with respect to information the government believes is incorrect with “respect to its business” – that are less restrictive than obligating social media intermediaries to require their users to take down material, Kamra points out.
Attack on Article 19(1)(g)
The IR constitute a patently unreasonable and excessive restriction on the right conferred by Article 19(1)(g) and not protected by Article 19(6).
Kamra has claimed that as a political satirist, he necessarily engages in commentary about actions of the Union government and its personnel through the wide reach of the internet, through social media platforms, to share his work. His ability to engage in political satire would be unreasonably and excessively curtailed if his content were to be subjected to a manifestly arbitrary, subjective “fact check” by a hand-picked unit designated by the Union government. He, therefore, submits that satire, by its very nature, does not lend itself to such a fact-checking exercise. It would entirely defeat the purpose of political satire, if it were to be scrutinised by the Union government, and censored on the grounds of being “fake, false or misleading”.
Political satirists would be constrained to self-censor or restrict their engagement with political commentary for fear of action under the IR. Social media platforms are the primary medium through which political satirists/comedians share their art. Should access to such media be restricted or policed by the Union government, it would unreasonably restrict their constitutionally guaranteed right to practise their profession/trade, Kamra has asserted.
Article 14 violation
By having the Union Government as the umpire for material that relates to its business, the IR is a classic example of making an entity (in this case, the government) a prosecutor and judge in its own cause. This is manifestly arbitrary, inimical to the rule of law, a violation of one of the most fundamental principles of natural justice and will naturally create a situation where material critical of the government will be particularly vulnerable to being flagged as “misleading” by the government’s own handpicked and designated fact-checker. Embedded in the IR is the real likelihood of gross abuse, and the exercise of the IR in a manifestly arbitrary and unreasonable manner, Kamra has submitted.
IR is irrational and contrary to the rule of law, as it accords to one entity – the Union government – a privilege accorded to no other (including state and local governments). Only the Union government is granted the power to have private entities censor or modify speech in response to the verdict of its own fact-checker. Neither other governments, nor individuals, are granted this right. This is the very definition of class legislation – with the Union government constituting the privileged class – which Article 14 is bound to prohibit, Kamra adds.
The IR is manifestly arbitrary and contrary to the basic principles of natural justice as it fails to afford the user any opportunity to be heard before a decision as to the “fake, false or misleading” nature of the content is made. IR is unreasonable, as there is no safeguard contemplated against the exercise of discretion by the Union government, purely on its subjective satisfaction. The IR do not provide for any mechanism by which the user has the right to have recourse for establishing the contrary or assailing such decision before a Court, Kamra explains in his petition.
The IR directly encroach on the role conferred exclusively on the courts: to be the arbiter in disputes, including between the State and its citizens, and the determination of facts in respect of such disputes. The IR constitute a usurpation by the Union government of this role conferred exclusively on the courts under the Constitution, Kamra has claimed.
Farce of public consultation
The Centre on January 17 had released a proposed draft of Intermediary Guidelines and Digital Media Ethics Code Amendment Rules for the purpose of public consultation. Numerous stakeholders had raised serious, well-considered objections to it. Yet, the Centre notified the Rules with only minor (inconsequential) amendments. Therefore, a demand for justice would be unavailing.Given the grave urgency, and the clear futility of any demand for justice being made to the Centre, the petition seeks urgent intervention by the high court.
Justifying the grounds for staying the IR, Kamra has suggested the the balance of convenience is overwhelmingly in his favour, and against the respondent, Union of India.