Bombay HC delivers split verdict on challenge to IT Rules on content fact-checking

Bombay HC delivers split verdict on fact check unit

A two judge bench of Bombay High Court on January 31 delivered a split verdict in a petition filed by political satirist Kunal Kamra challenging the  government's amendment to the Information Technology Rules creating a  fact-check unit for verifying news related to the government.

Justice Gautam Patel agreed with Kamra's contention while Justice Gokhale disagreed with the same.  As per the existing convention, the case will now be referred to a third judge by the Chief Justice of Bombay High Court. It was orally told in the court that the Chief Justice may take sometime to allocate the case to a third judge.

Appearing for the Ministry of Electronics and Information Technology (MEITY) Solicitor General Tushar Mehta, had earlier told the Court that the Ministry would not notify the formation of the unit for the next 10 days.

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.

Kunal Kamra's plea:

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).