Intermediaries Not Mandated To Remove Content Flagged As Fake, Says Centre’s Counsel 

Platforms such as Facebook or X (formerly Twitter), identified as intermediaries under the Information Technology Rules, are not obligated to take down any content flagged as fake news by the fact-checking unit, Solicitor General of India, Tushar Mehta, submitted before the Bombay High Court on Tuesday.

They are free to host the content with or without a disclaimer, at the risk of losing the safe harbour, or they can opt to take down the content, Mehta said, while representing the centre.

"There is a request for removal, but not a mandate. The mandate is resolution of the dispute," he said.

The final decision as to the accuracy of the information will always lie before the court, making sure that the centre is not a judge in its own case, he argued.

The court was hearing a batch of petitions challenging the recent amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The petitioners include comedian Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines.

According to the petitioners, one of the provisions in the recently notified rule that bars intermediaries from hosting, publishing, or sharing fake, false, or misleading information regarding any business of the central government, so notified by a fact-checking unit, is violative of the users’ fundamental right to speech.

This is because the constitution, according to them, not only protects speech that’s true but also speech that’s false. It has a far-reaching impact on the freedom of speech of individuals, as it would also include opinions, satires, or parodies, it was argued.

The provision does not justify the object it purports to achieve, as it only regulates news associated with the centre's business, it was alleged. It is also violative of the right to equality, as fake news against non-governmental organisations will remain unregulated despite the enactment of the law.

However, according to Mehta, these apprehensions are misplaced. The scope of the bar is limited to information that's put forward as fact. It doesn't intend to bar the expression of ideas, opinions, satire, or parody, he said.

Further, there is no automatic loss of self-harbour to the intermediary just because they continued to host such content. It only loses such a right when a court finds the information to be false, he argued. He also stressed that the intention of the legislation is not to penalise entities hosting fake news but to regulate such content. Therefore, there is no chilling effect, as the petitioners had perceived, he argued.

The court will continue hearing the matter on Wednesday.