Bombay High Court Strikes Down Centre’s Amended IT Rules

Table of Contents

Introduction

The Bombay High Court has invalidated a provision in the 2021 IT Rules that permitted the government to identify ‘fake news’ on social media through a Fact Check Unit (FCU).
In a 2-1 majority ruling, the court declared the amended IT Act provision that established the FCU as unconstitutional.
Earlier this year, the Government of India designated the Press Information Bureau’s Fact Check Unit (PIB-FCU), under the Ministry of Information and Broadcasting (MIB), as the official fact-checking body.
The Ministry of Electronics and Information Technology (MeitY) had notified the PIB-FCU as the Central Government’s fact-check unit under the amended provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2023.

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- The Ministry of Electronics and Information Technology (MEiTY) introduced the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, amending the 2021 IT Rules.

- The amendment expanded the definition of “fake news” to include information related to “government business.”
- The PIB’s Fact-Check Unit (FCU) was designated as the official fact-checking body under these rules.

- The FCU is empowered to flag social media posts it considers “fake,” “false,” or “misleading” about government matters.
- It can compel platforms to remove such content to maintain their “safe harbour” status and legal immunity.
- This raises concerns over government control of truth and potential censorship.

Constitutionality: The Bombay High Court ruled 2-1 that the amended rules were unconstitutional.
Restriction of Fundamental Rights: The majority opinion stated that the amended rules violated Articles 14, 19(1)(a), and 19(1)(g) of the Constitution, restricting fundamental rights beyond acceptable limits.
Vague and Misleading Terms: Terms like “fake,” “false,” or “misleading” were deemed vague and overly broad, with the court asserting it is not the state’s role to guarantee “truthful” information.
Chilling Effect on Freedom of Speech: The threat to social media platforms regarding their “safe harbour” status was noted as creating a chilling effect on free speech.
Overarching Powers of the Fact-Check Unit: The court criticized the FCU’s extensive authority, arguing that the state should not classify speech as true or false, which amounts to censorship.

- : Established in November 2019, the PIB-FCU aims to deter the spread of fake news and misinformation regarding the Government of India.

- Monitoring Misinformation: The FCU counters misinformation related to government policies and initiatives, acting on its own or based on complaints.
- Active Surveillance: The unit actively monitors disinformation campaigns to promptly expose and correct false government information.
- Content Removal: When the FCU identifies content as fake, social media platforms are required to remove it under IT Rules, while telecom providers must block related web links.

Addressing Fake News: The FCU aims to combat fake news and misinformation, which can harm society.
Increased Accountability: The FCU’s notification enhances the accountability of social media intermediaries, requiring them to remove false content.
Cybersecurity Enhancement: The unit aims to improve cybersecurity by regulating the sharing of harmful content, such as deepfakes.
Prevention of Hate Speech: The FCU seeks compliance with Indian laws to prevent social media misuse for inciting violence or spreading hate speech.

Chilling Effect on Free Speech: There are fears that the FCU’s censorship powers could deter individuals from expressing their views online.
Potential for Government Misuse: The FCU could be exploited by the government to suppress dissenting voices, threatening democratic values and human rights.
Conflict of Interest: The FCU’s dual role as judge and executor raises significant conflict of interest concerns.
Ambiguity in Definitions: The lack of clear definitions for “fake,” “false,” or “misleading” information could lead to arbitrary censorship.
Short-Circuiting Legal Procedures: The FCU’s directive powers could bypass established legal safeguards outlined in significant legal cases, undermining free speech protections.

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Awaiting Supreme Court Verdict: The SC should deliver a conclusive verdict on the broader implications of the IT Rules, particularly regarding grievance redressal mechanisms for social media platforms.
Transparent Processes: The government should collaborate with civil society and media organizations to establish a transparent process for defining misleading content.
Independent Fact-Checking Body: An independent and non-partisan fact-checking entity should be established with clear guidelines for decision-making.
Adherence to Judicial Guidelines: Any content removal requests should follow the procedural safeguards outlined in landmark cases, ensuring protection for online speech.