[BREAKING] “Unconstitutional”: HC Strikes Down IT Rules For Establishment Of ‘Fact Check Units’ For Censoring Fake News

The Bombay High Court Today (Sept 26) officially struck down the amendment to the Information Technology (IT) Rules, 2021, which had granted the central government the authority to create a Fact Check Unit (FCU) to monitor and censor fake news. This amendment, which had sparked concerns over freedom of speech and press freedom, has now been overturned by the court, citing concerns over excessive government control and potential infringement on the fundamental rights of citizens.

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MUMBAI: The Bombay High Court officially struck down the amendment to the Information Technology (IT) Rules, 2021, which had granted the central government the authority to create a Fact Check Unit (FCU) to monitor and censor fake news.

This amendment, which had sparked concerns over freedom of speech and press freedom, has now been overturned by the court, citing concerns over excessive government control and potential infringement on the fundamental rights of citizens.

The Fact Check Unit, as envisioned by the amendment, was intended to regulate and remove any content deemed as “fake news” related to the government on digital platforms. However, critics had raised alarms that this could lead to unchecked censorship, with significant implications for online content creators, journalists, and social media platforms.

The division bench has declared the amendment to the Information Technology (IT) Rules, 2021, “unconstitutional” and struck down the provision that permitted the Central government to establish Fact Check Units (FCUs) to monitor “fake and false” information related to its operations on digital platforms. This decision came after receiving the ‘opinion’ of the “tie-breaker” judge, which resolved the earlier split verdict on the matter.

The bench of Justices Ajay Gadkari and Dr. Neela Gokhale delivered the final verdict, allowing petitions filed by comedian Kunal Kamra, the Editors Guild of India, and others who had challenged the amendments.

“in light of the majority opinion, Rule 3(1)(v) is unconstitutional and has been struck down. Consequently, the petitions are allowed.”

-the bench stated.

The ruling followed a split decision in January 2023 by a division bench of Justices Gautam Patel and Dr. Neela Gokhale. Justice Patel had struck down the amendment, while Justice Gokhale upheld it. The split prompted the involvement of a third judge, Justice Atul Chandurkar, who last week aligned with Justice Patel’s views, paving the way for today’s ruling.

Since Justice Patel retired, the case was reassigned to a division bench consisting of Justices Gadkari and Gokhale, which delivered the final majority verdict, striking down the contentious amendment as unconstitutional.

This ruling is seen as a significant victory for freedom of speech and press rights, as it curtails government control over online content under the guise of fact-checking.

By invalidating this amendment, the Bombay High Court has effectively restored the balance between the need for fact-checking and the preservation of free speech, emphasizing the importance of independent oversight and the protection of democratic values in the digital age.

EARLIER IN BOMBAY HC

Justice AS Chandurkar of the Bombay High Court on Sept 21 ruled to invalidate Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules Amendment). This rule had granted the Central government the authority to create Fact Check Units (FCUs) to monitor and regulate “fake news” regarding its operations, but Justice Chandurkar found it in violation of fundamental rights.

Rule 3 required intermediaries, including social media platforms, to ensure users do not disseminate content that is “patently false and untrue or misleading” in relation to the business of the Central government. The establishment of FCUs was intended to identify such misleading information.

Several petitions, including one filed by comedian Kunal Kamra, challenged the legality of Rule 3.

Justice AS Chandurkar’s verdict came after the case was referred to him following a split decision by a Division Bench consisting of Justices GS Patel and Neela Gokhale in January 2023. Justice Chandurkar’s ruling aligned with Justice Patel’s viewpoint, overriding Justice Neela Gokhale’s support of the amendment.

Here are five key reasons why Justice Chandurkar deemed the amendment unconstitutional

1. Violation of Fundamental Rights

Justice Chandurkar concluded that Rule 3 violated the right to equality under Article 14 and the rights to freedom of speech and profession under Articles 19(1)(a) and 19(1)(g) of the Indian Constitution. Additionally, the rule was found to be ultra vires (beyond legal authority) the Information Technology Act, 2000.

On the issue of freedom of expression, Justice Chandurkar concurred with Justice Patel, who had previously noted that Article 19(1)(a) ensures freedom of speech but does not guarantee a “right to the truth.”

Justice Patel emphasized that restrictions on speech must be reasonable and must align with Article 19(2). He also pointed out that the rule created an improper classification of speech without constitutional backing, thus violating Article 19(1)(a).

Justice Neela Gokhale, however, had upheld the rule, asserting that it complied with Section 69A of the Information Technology Act and past judicial rulings, contending that intermediaries would only lose their legal protections if the content exceeded the restrictions under Article 19(2). But Justice Chandurkar disagreed, stating,

“there is no inherent ‘right to the truth’ under Article 19(1)(a),”

and argued it is not the government’s place to dictate the veracity of information. He declared the amendments to Rule 3(1)(b)(v) as ultra vires Articles 19(1)(a) and 19(2).

2. Discrimination Against Digital Platforms

Justice Chandurkar pointed out that the rule discriminated against digital platforms in comparison to print media, echoing Justice Patel’s argument that this constituted discrimination under Article 19(1)(g).

Justice Patel had argued that information in print was not subject to the same level of scrutiny. Justice Chandurkar agreed, noting,

“There is no basis or rationale for undertaking the exercise of determining whether any information in relation to the business of the Central Government is either fake or false or misleading when in the digital form and not undertaking a similar exercise when that very information is in the print form.”

Justice Gokhale had reasoned that digital platforms have a broader reach, justifying stricter regulation. However, Chandurkar rejected this logic, stating that arbitrary classifications cannot justify unequal treatment under the law.

3. Government Cannot Be Judge in Its Own Cause

Justice Chandurkar criticized the rule for effectively allowing the government to act as the final arbiter of “fake news” about itself. This, he pointed out, created a conflict of interest since the government was essentially “the judge in its own cause.“

“The FCU in a sense is the arbiter in its own cause,”

-Justice Chandurkar observed, highlighting how this undermines impartiality and fairness.

He referenced prior Supreme Court decisions that had struck down similar conflicts of interest, asserting,

“Taking into consideration all aspects including that the basis on which the information with regard to the business of the Central Government is to be identified for being categorized either to be fake or false or misleading, the FCU in a sense is the arbiter in its own cause.”

Justice Chandurkar dismissed the argument that decisions made by FCUs could be later challenged in a constitutional court, arguing,

“The same cannot be treated as an adequate safeguard and it would not be of much consequence in the light of the decision in A. K. Kraipak & others.”

He concluded that the government’s dual role compromised the impartiality necessary for an objective determination.

4. Vagueness and Overbreadth

Justice Chandurkar’s next major criticism was the vagueness of Rule 3. He emphasized that crucial terms such as “fake,” “false,” and “misleading” were left undefined, leading to an excessively broad interpretation. This ambiguity granted the FCU too much discretion, which could lead to potential misuse.

“The absence of any clear indication of what constitutes ‘fake or false or misleading’ information renders the rule unconstitutional,”

-Chandurkar stated.

He echoed Justice Patel’s earlier concerns that this vagueness could create an “illusion of choice” concerning information about the government’s business.

Justice Gokhale had dismissed such concerns, suggesting that intermediaries could simply seek clarification from authorities. However, Chandurkar maintained that the lack of legal clarity made even lawful content susceptible to censorship.

5. Chilling Effect on Digital Intermediaries

Justice Chandurkar, agreeing with Justice Patel once again, noted that Rule 3 would have a chilling effect on digital intermediaries. The requirement that intermediaries ensure they do not host undefined “patently fake or false or misleading” content could lead them to practice self-censorship to avoid penalties.

“The fact that the impugned Rule also results in a chilling effect qua an intermediary would render it invalid,”

-Chandurkar ruled.

Justice Gokhale had downplayed this chilling effect, arguing that intermediaries could always consult with authorities before removing content. However, Justice Chandurkar disagreed, reiterating that the vagueness of the rule could cause intermediaries to err on the side of caution, thereby stifling free speech.

He also rejected the Central government’s argument that the rule could be “read down” to prevent it from being struck down. Justice Chandurkar contended that the fundamental flaws in the rule could not be corrected through interpretation.

In conclusion, Justice Chandurkar reiterated that the rule’s deficiencies could not be mitigated by ignoring or reinterpreting its terms. He stated,

“Limiting the operation of the impugned Rule only to fake or false information, thereby ignoring the expression ‘misleading’ which appears in Rule 3(1)(b)(v) would not be an exercise of reading down but would amount to ‘reading out’ the said expression which has been held to be impermissible by the Supreme Court while dealing with a similar submission in Shreya Singhal.”

He ultimately ruled that Rule 3 failed to meet the proportionality test required to justify any infringement on fundamental rights.

Click Here to Read Previous Reports on Fact Check Units

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