A split judgment in the challenge against the 2023 IT amendments The right to freedom of speech and expression still hangs in the balance

31, Jan 2024 | CJP Team

On January 31, after a wait for almost four months, a split judgment has been delivered in the petitions filed in the Bombay High Court against the 2023 amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules. The amendment, which provide for setting up fact check units empowered to identify and tag what it considers false or fake online news for any activity of the Central government, had been challenged before the High Court by comedian Kunal Kamra and others.

Today, during the pronouncement of the verdict by the division bench of Justices GS Patel and Neela Gokhale, it was stated that the division bench has written two separate judgments. As per a report in the Bar&Bench, the judgment of Justice Patel is in the favour of the petitioners while the judgment by Justice Gokhale has held against the petitioners and has upheld the validity of the 2023 amendment rules. It was further provided by the bench that since the division bench has not been able to reach a decision, the case will now go back to the Chief Justice of the High Court, who will then assign the same to a third judge.

While the bench had suggested a period of four weeks for the Chief Justice to form a third bench, Solicitor General Tushar Mehta expressed his issue with continuing the stay on the amendment any further. To this, the bench had then pointed that the same stay had been continuing since April of 2023. With this, a period of ten days has been given for the same. Notably, the stay on the said amendment to the IT Rules will also be continued till then.

What is problematic about the IT Rules, 2023?

The IT Rules, 2023 bring a new twist to Rule 3(b)(v) of the IT Rules, 2021, shaking up the landscape for intermediaries’ due diligence. Under the amendments, intermediaries are now tasked with going above and beyond to prevent users from publishing or circulating any content related to the Central Government that’s deemed “fake,” “false,” or “misleading.” What’s more is that this determination will be made solely by a “fact check” unit handpicked by none other than the Central Government itself. Failure to keep up with “due diligence” could lead intermediaries down a treacherous path, risking their safe harbour status under Section 79 of the IT Act, 2000.

Feeling suffocated by the new regulations, political satirist and comedian Kunal Kamra (filed on April 10, 2023), the Association of Indian Magazines and the Editors Guild of India, have filed writ petitions before the Bombay High Court challenging the constitutionality of this provision. In his bold move, Mr. Kamra, particularly, argues that these rules not only strangle freedom of expression and speech but also defy natural justice while infringing upon Article 14, 19(1)(a) and 19(1)(g), going beyond the boundaries set by Section 79 of the IT Act, 2000. The Union’s response merely echoes the purported purpose of these rules – to combat misinformation – asserting that it seeks to shield against false news rather than curtail creators’ rights.

Deep diving into Kamra’s petition

Kunal Kamra’s stand against the new IT Rules, 2023 encompasses a compelling array of reasons:

1. Being ultra vires Section 79 of the IIT Act, 2000

Section 79 of the IT Act is like a protective shield for social media intermediaries, keeping them safe from any faults in user-generated content. It’s like a “safe harbour” that protects them. Mr. Kamra highlights Shreya Singhal’s view on how notifications should be handled through a court order rather than just by the Central Government alone. The IT Rules, 2023 seem to give the Central Government too much power, allowing them to act as both judge and prosecutor without involving the Court at all—quite different from what Section 79 originally set out.

2. Violates the freedom of speech and expression enshrined in Article 19(a)

The enigmatic IT Rules, 2023 leave the phrases “any business of the Central Government,” “fake or false or misleading,” and “reasonable efforts” shrouded in ambiguity, opening doors to interpretation that could encompass nearly every facet of life under a welfare state. The case of Shreya Singhal v Union of India, (2015) 5 SCC 1 struck down oppressive limitations on freedom of speech and expression, denouncing their vague and overreaching nature. Confinement of the freedom of speech and expression have been deemed to the unconstitutional on grounds of ‘over-breadth or vagueness. The inexplicable “business” is largely overbroad and vague and a boundlessly manipulable term. The “chilling effect” wherein the “imprecise speech-restriction laws leave a large grey area within which citizens are guessing where the line between legality and illegality lies” is put into effect by broad imaginations of the IT Rules, 2023. The IT Rules, 2023 will compel intermediaries to give precedence to removing content flagged by the government’s fact-checking unit to protect their safe harbour provisions from being jeopardized.

3. Fails to meet the rightful boundaries on freedom of speech and expression as outlined in Article 19(2)

Speech shall not be constrained without proper justification within the framework of Article 19(2) and must not extend beyond its provisions. The category of “fake or false or misleading” content is absent from Article 19(2). Additionally, the IT Rules, 2023 fail to meet the proportionality test, which mandates the selection of the least restrictive option. Numerous less constraining alternatives exist, including issuing clarifications or corrections concerning information that the government considers erroneous in relation to its operations instead of mandating intermediaries to remove online content.

4. Violates the right to freely pursue one’s chosen trade or profession under Article 19(g)

The petition proclaimed that the IT Rules, 2023 trample upon the freedom of Mr. Kamra to practice as a political satirist under Article 19(g). It expressed deep concern that his content might be selectively targeted by the Central Government and scrutinized by the ‘fact check’ unit, possibly resulting in the deprivation of his social media privileges. Furthermore, the petition conjectured that fellow political satirists may resort to self-censorship or steer clear of engaging in political discourse.

5. Violation of Article 14 is also presented on multiple aspects

The act of making the Central Government decide upon the material that relates to its “business” violates principles of natural justice, is arbitary, inimical to the law, and would lead to a situation wherein any critical matreial will be vulnerable to being demeed “misleading.” The censorship enjoyed solely by the Central Government and no other entity makes the IT Rules, 2023 contray to law as “right ot be heard” under Article 14 prohibits such privileges.

The Union’s Response

A response affidavit was filed by the Union on April 21, 2023. The response asserted that Mr. Kamra’s petition was ‘premature’ and that the IT Rules, 2023 were issued in ‘public interest’ to combat the dissemination of ‘fake news’. According to the reply, the issuance of these Rules does not diminish any right for an aggrieved party to seek legal remedy if they believe information has been wrongly flagged. Additionally, it was assured by the Union that the function of the Fact Checking Unit would not be assumed until a final verdict is reached.

Further proceeding

In June 2023, the Bombay High Court issued a directive to assemble all these petitions for an eagerly anticipated final hearing on July 6 and 7, 2023. Amidst this, Senior Advocate Navroz Seervai, representing Mr. Kamra, artfully voiced profound concerns about the IT Rules, 2023 while casting doubts upon the government’s capacity to judiciously adjudicate these matters while honoring the sacred tenets of natural justice. Additionally, Mr. Gautam Bhatia on behalf of Association of Indian Magazines vocally opposed the government’s unilateral push to monopolize truth. He shed light on the subtle coercion embedded in the IT Rules, 2023, warning that intermediaries could lose their safe harbour protection if they don’t comply with fact-check directives. This, he cautioned, would result in intermediaries prioritizing commercial interests over users’ free speech rights. Emphasizing its potential impact on free speech in India, he underscored the urgency of protecting it from excessive governmental control.

Next, September 26 and 27, 2023, the Solicitor-General of India Mr. Tushar Mehta highlighted the fact-check unit’s quest to vanquish patently false government-related content and dealing with misinformation. The intent behind the rules strays away from constricting practices of satire and criticism of the government rather focuses on restricting the spread of false and misleading information.

The closing statements before the Division Bench, with Justices Guatam Patel and Neela Gokhale presiding, took place on September 29, 2023. The eagerly anticipated verdict is now reserved for January 31, 2024!

Why are we concerned with the IT Rules, 2023?

The creation of the fact check unit under the IT Amendment Rules, 2023 will empower it to determine the validity of information and decide on its online presence. Failure by intermediaries to remove flagged information may lead to them losing their safe harbour protection under Section 79 of the IT Act. This could have a significant impact on freedom of press in India’s cyberspace. The looming spectre of fake news and misinformation poses a dire threat to the bedrock of democracy like never before. These deceitful narratives not only stoke discord among different sectors globally but also sow seeds of distrust in verifiable information. While it is imperative for authorities to institute necessary safeguards against this growing menace, an administration facing grave allegations on this very issue must be wary that its recent actions are viewed as a direct assault on foundational rights and constitutional principles.

Brief about the laws governing the digital domain in India:

The Information Technology Act, 2000 (IT Act, 2000) stands as the foremost law addressing the realm of electronic data and information technology. The IT Act, 2000 put forwards important definitions that the Information Technology Rules use to formulate guidelines. One of them is intermediary. In the world of electronic records, an intermediary is anyone who handles a record on behalf of another. This can include telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites and even cyber cafes. Section 79 of the IT Act, 2000 a powerful function known as “safe harbour” is inscribed. It proclaims that an intermediary shall be shielded from liability for third-party information hosted by a user, under certain conditions. These conditions demand unwavering diligence in carrying out their duties under this Act and adherence to the guidelines prescribed by the Central Government for this purpose.

Over the years, the Act has gone through various amendment making it much more problematic in regards of the digital vision that the Government plans to showcase. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) were introduced by the Government to override The Information Technology (Intermediary Guidelines) Rules, 2011. The IT Rules 2021 provided with distinctions between types of intermediaries and engages in collaborations with purveyors of breaking news, current affairs, and meticulously curated online content.

Since the introduction of the IT Rules, 2021, a whirlwind of 17 diverse challenges contesting its constitutionality has swept through various High Courts of India. These legal actions have been initiated by individuals, associations, and organizations alike. A few among them are LiveLaw, WhatsApp LLC, Uday Bedi, News Broadcasters Association, The Leaflet, and Foundation for Independent Journalism. The Union of India had requested for the transfer of cases to the Apex Court, the cases remain ongoing.

The newest update unfolds on April 6, 2023, as the of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendments Rules, 2023 (IT Rules, 2023), bringing a wave of petitions.

Furthermore, Cable Television Networks (Amendment) Rules, 2021 were also introduced by the Information and the Broadcasting Ministry. Through this, a new self-regulating, grievance redressal system was introduced to put the obligation of the content being circulated on the broadcasters. Several prominent voices, including The Wire, LiveLaw and The Quint, have raised strong objections against the recent government directive for digital media. They argue that it infringes upon the IT Act, 2000 and undermines the constitutional right to media freedom.

(The backgrounder to this article  has been researched by CJP’s legal interns team including Karishma Jain)


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