HC concerns over IT rules overreach

The Bombay High Court has, during the hearing of standup comedian Kunal Kamra’s plea against the amendments to the Information Technology Rules, made some important observations that endorse the criticism widely aired by the media and others. Kamra, Editors Guild of India and others have filed petitions in the court against the rules, terming them as arbitrary and unconstitutional and contending that they will have a ‘chilling effect’ on fundamental rights. The rules included a provision for a fact-finding unit (FCU) to flag fake, false or misleading online content related to the government. If the FCU declares a piece of content as fake, false or misleading, the media site has to remove it and the service provider has to block the URL if it wishes to retain its safe harbour (legal immunity against third party) right.

The two-judge bench of Justice Gautam Patel and Justice Neela Gokhale criticised every aspect of the amendment and questioned its need and motive. It said wordings like fake, false and misleading are problematic. ‘Misleading’ is an opinion, and it is subjective. What is misleading for one may not necessarily be misleading for another, the bench noted. “We are not even sure if a civil court can authoritatively pronounce on the truthfulness or falsity of a statement. It can pronounce its decision on the probability of the truthfulness or falsity of such a statement,’’ the court said. What the court pointed out was that it would be wrong to take decisions on the basis of judgements which are likely to be inaccurate. It envisaged a situation where politicians would make many statements on the campaign trail “as we are approaching 2024.” The court wondered whether political campaigns would be treated as ‘business of government’ under the amended rules.

The court also raised the question of protection for editors and editorial content. It said, “No matter how laudable or high the motives are, if the effects (of the amended rules) are unconstitutional, then it has to go.” Media representatives have maintained that the rules amount to censorship. Kamra’s counsel pointed out that the government wanted to ensure that social media covered only what it termed as the truth and ensure that everything else was censored. The government’s contention that the affected parties could move court is meaningless because the content in question would cease to be relevant by the time the legal challenge runs its course. The court has done well to highlight these concerns.