New Delhi: The Indian Journalists Union (IJU) welcomes Bombay High Court order striking down as “unconstitutional” the amended IT Rules, 2021 rules which empower the Centre to identify “fake news” on social media platforms through a Fact Check Unit (FCU).
On Friday last, a third judge, Justice Atul S Chandurkar, gave the deciding opinion after a two-judge bench had given a split verdict on the petitions, challenging validity of the rules as being ultra vires or exceeding provisions of IT Act, 2000. He agreed with petitioners the rules were violative of Article 14 (equality before law) and 19 (1) (a) and 19 (1) (g) of Constitution (right to freedom of speech and expression, and right to practice a profession or trade).
As per IT rules amended in April 2023, content marked by FCU as “fake or misleading” will have to be taken down by online intermediaries if they wish to retain their “safe harbour” (legal immunity against 3rd-party content). The petitioners, stand-up comedian Kunal Kumra, Editors Guild of India, News Broadcasters and Digital Association, Association of Indian Magazines, had challenged these saying the rules made central government the sole arbiter of truth in respect of its business, obliging private parties to impose that version of truth on all users. “This provision, therefore, makes the government the sole gatekeeper of the marketplace of ideas and constitutes a clear breach of Article 19(1)(a) (freedom of speech and expression).”
While stating that expressions “fake, false or misleading” are “vague and overbroad”, and “test of proportionality” is not satisfied, Justice Chandurkar noted it was also “not a responsibility of the state to ensure that citizens are entitled only to ‘information’ that was not fake, false or misleading as identified by FCU”. There was “no basis or rationale” to determine whether information viz Central Government business is either fake or false when in digital form, while not taking similar exercise when the same information is in print. The impugned rule resulted in a “chilling effect” for the intermediary.
In a statement, IJU President and former member of Press Council of India Geetartha Pathak and Secretary General and International Federation of Journalists (IFJ) Vice President Sabina Inderjit said the verdict has not only safeguarded the right to freedom of speech and expression but has protected the citizens’ right to information. The Centre’s FCU would have led to veiled censorship as well as had a chilling effect on freedom of speech, essential to democracy.
