Kunal Kamra moves Bombay HC against government's amendment to IT Rules on content fact-checking

The Centre announced proposed amendments to the IT Rules on April 6 that would mandate a government-appointed organisation to identify any false or misleading content relating to the government.

A petition has been filed in the Bombay High Court challenging the government's recent amendment to the Information Technology Rules, which mandates that content related to the government be fact-checked by an organisation appointed by the Centre.

Political satirist Kunal Kamra filed the petition with the help of the digital rights organisation Internet Freedom Foundation. While hearing the matter on April 11, the Bombay High Court directed the Ministry of Electronics and Information Technology (MeitY) to explain why the IT Rules 2023 should not be stayed and to "describe the factual background that necessitated the issuance of the amendments."

The IT Rules (amendment), 2023 states that intermediaries like social media platforms will have to make “reasonable efforts” to ensure that users do not upload information about Central government “identified as fake or false or misleading”.

An organisation appointed by the government will be the arbiter of such content, and if intermediaries do not comply with the organisation's decision, they may lose their safe harbour status under Section 79 of the IT Act, 2000.

Moneycontrol previously reported on how digital rights groups, including IFF and Software Freedom Law Centre, criticised the recent amendments made to the IT Rules. These groups argued that granting any government unit arbitrary and overbroad powers to determine the authenticity of online content bypasses the principles of natural justice, making it unconstitutional.

What the petition says

Internet Freedom Foundation which assisted Kamra, in filing the writ petition said that the petition has challenged the validity of the IT rules, arguing that the amendments are ultra vires of Sec 79 of the IT Act , 2000.

"In Shreya Singhal v. Union of India, the Supreme Court held that revocation of safe harbour for intermediaries must conform to subject matters laid down in Article 19(2). “Fake or false or misleading ” content is not a ground enumerated in Art. 19(2) or Section 69A of the IT Act, 2000," they reasoned.

The petition also argued that the amendments violate the right to freedom of speech and expression under Article 19 (1)(a); does not satisfy provisions of reasonable restrictions on freedom of speech and expression under Article 19(2) and that it violates right to practice and trade or profession under Article 19(1)(g).

"As a political satirist, Mr. Kamra relies on the internet's extensive outreach, particularly social media platforms, to disseminate his work. Subjecting their content to a capricious and biased "fact check" by a unit chosen by the Central Government would significantly curtail his capacity to partake in political satire," IFF said.

MeitY has been directed to file the affidavit by April 19, 2023, and the next date of hearing in the matter is April 21.