Words like fake, false, misleading in IT Rules problematic: Bombay High Court

The court said, “The wordings of the IT Rule with words like fake, false and misleading are problematic.”

The Bombay High Court on Friday said words such as “fake, false and misleading” that are part of the new Information Technology (IT) Rules are “problematic”.

A Division Bench of justices Gautam Patel and Neela Gokhale was hearing a bunch of petitions filed by political satirist Kunal Kamra, the Editors Guild of India and the Association of Indian Magazine and regional channels challenging the constitutional validity of the IT (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.

Senior advocate Navroz Seervai appearing for Mr. Kamra argued that the Ministry of Electronics and IT themselves say that they have an effective mechanism called Press Information Bureau which according to them works very well, yet the new Rules has FCU. No one would know if statements were true or false and the FCU would decide.

The court said, “The wordings of the IT Rule with words like fake, false and misleading are problematic. Those are the only three criteria [to flag content as false]. We don’t know the business of the Central government. The expression like fake is extremely problematic. One might argue something is false. Falsity puts us in a binary, fake doesn’t even attempt to do that. The word ‘misleading’ in the Rules is an extremely problematic area since it is an opinion. Calling something “misleading” is subjective, what is misleading for one may not necessarily be misleading for another,” the Bench noted.

The court went on to say, “Analysts may have their own figures. Is it fake news? I want to know what happens to editorial content online. You may find any editorial extremely hard-hitting. For example, India’s relations with China. Words like fake, false, misleading are used in amendment. We are concerned about authority conferred on FCU.”

The court on July 6 had said, “As we are approaching 2024, people will say things in campaign trail. Suppose an online person questions the statements made in campaign trail by political spokesperson, calls it out and if FCU says remove it, how can it do that? Is that the business of the government? Let’s say online magazine calls out political entity, the FCU does nothing. But if there is direction of government to take it down, then you lose safe harbour. Can a site hosting this lose safe harbour if the government’s FCU flags it as false, and they refuse to remove it?”

The hearing will continue on July 14.