Intermediary Rules: Bombay High Court Questions Fact-Checking Unit’s Source Of Power

The Bombay High Court on Friday questioned the source of power of the fact-checking unit envisaged under the IT Intermediary Rules to determine what’s true or false.

"I am not even sure if the civil court of the highest order can authoritatively pronounce on the truth or falsity of a statement," Justice Gautam Patel said. Even a court can only make a pronouncement on the probability or likelihood of a statement's falsehood and nothing more, he said.

The high court was hearing a set of petitions challenging the recently notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The petitioners include comedian Kunal Kamra, the Editors Guild of India, and Association of Indian Magazines. On Thursday, 27 regional channels, represented by Senior Advocate Arvind Datar, also joined the challenge.

According to the petitioners, the provision 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.

During the hearing, Kamra’s counsel, Senior Advocate Navroz Seervai laid out several provisions of the Constitution violated by the provision.

Firstly, the provision is violative of freedom of speech as it presumes that all information hosted on these platforms is patently false. According to him, it is a false notion put forth by the government that the Constitution only protects true speech.

Further, the provision fails to recognise the divergence in interest of intermediaries and users.

Intermediaries are essentially commercial organisations, least concerned with what they host. They will not retain any material at the cost of safe harbour. The rule, by denying them safe harbour, strikes at the heart of the purpose of social media and thus the rights of users. It’s a way of saying my way or the highway, he said.

The government is essentially saying that "We will ensure that social media covers only what we want and ensure that everything else is censored", Seervai said.

Secondly, the rule, by granting protection solely to the business of the central government, violates the principle of equality enshrined in the Constitution. There's no protection granted against false news pertaining to non-governmental entities, he said. "The classification has no nexus to the object it’s seeking to achieve, which is to curb fake news," he said.

Thirdly, the rule also violates natural justice principles as it gives the intermediary no opportunity to be heard before taking away the safe harbour protection. Also, by allowing the government to sit as a judge in its own cause, the rule violates not only one, but multiple facets of natural justice, he said.

A fourth challenge was also made against the vagueness and over-broadness of the provisions. The rules fail to define what’s fake, false, or misleading, he said. The court also took note of how this could be problematic.

In this context, the provision requires further examination, Seervai submitted.

The bench of Justices Patel and Neela Gokhale will hear the matter next on July 13.