The Bombay High Court on Tuesday observed that a recent amendment to the Information Technology Rules gives “unfettered power” to the government in the absence of guidelines or guardrails, PTI reported.
Under the amendment notified on April 6, the Centre can set up a fact-checking unit that can flag online information it considers false or misleading. Social media intermediaries also have to censor or modify content flagged by the unit.
The court was hearing petitions by stand-up comedian Kunal Kamra, the Editors Guild of India and the Association of Indian Magazines challenging the amendment. The petitioners have described the amendment as arbitrary and unconstitutional and contended that it would have a chilling effect on citizens’ fundamental rights.
A division bench of Justices Gautam Patel and Neela Gokhale on Tuesday questioned why a separate unit was needed when the Press Information Bureau already had a wing to carry out fact checking on social media.
“You [government] have a PIB which has its presence on social media,” Justice Patel said. “Why then was this amendment required and for an FCU [fact-checking unit] to be set up? I think this amendment wants to do something more.”
However, Solicitor General Tushar Mehta, representing the Union government, contended that the Press Information Bureau was toothless, and said that he would argue on this point further on Wednesday.
Rules do not prohibit expression of opinion: Centre
The Information Technology Rules only aim to rein in false news, and do not prohibit the expression of any opinion or critical analysis of the government, Mehta told the court, according to Bar and Bench.
“Any humour or satire against the political government whether we like it or not, has nothing to do with this regulation,” the solicitor general said. “Unless the humour doesn’t cross boundaries like abuse or pornography. Humour [and] satire is always welcome in any manner.”
Mehta said that the rules neither have any penal provisions nor do they criminalise anything. He said that social media intermediaries would have three options when their content is flagged by the fact-check unit – removing the content, not removing the content but adding a disclaimer that it has been flagged, or ignoring the communications from the fact-checking unit.
The court then asked why the amendment was needed if the government did not intend to mandate intermediaries to remove content, Bar and Bench reported.
It also remarked that the fact-check unit would have to be trusted as the final arbitrer of truth. “The government is the sole arbiter without any checks and balances on what is the truth,” Justice Patel said. “Basically, who will fact-check the fact-checker?”
In April, the Centre had told the High Court that it had amended the Information Technology Rules because false and misleading information could harm electoral democracy.
The Union Ministry of Electronics and Information Technology had said that misinformation has the potential to fan “separatist movements and intensify social and political conflict, while also weakening public trust in democratic institutions”.