Bombay High Court Reserves Judgment On Kunal Kamra's Challenge to IT Rules Amendments

The Bombay High Court on Friday reserved its judgement in a petition filed by comedian Kunal Kamra and others against the recently notified amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The court will pronounce its order on Dec 1.

Besides Kamra, the Editors Guild of India and the Association of Indian Magazines have also challenged the rules.

The court will decide the constitutionality of provisions that bar intermediaries, such as Facebook and Google, from hosting content flagged as fake or misleading by a government-set-up fact-checking unit. The government has assured that it won't notify such an FCU until the pronouncement of the order.

The petitioners claim that this amendment not only violates the constitution's guarantee of the right to free speech but also its protections for equality.

To them, it is a misconception of the state that the right only protects true speech. False speech is as protected as true speech, they argued. Further, it has a chilling effect on the user's right to express his ideas, expressions, or opinions, as the intermediaries have divergent interests from their users and may take down content in order to save themselves from any government actions.

The court, too, in the last hearing expressed concern about the lack of recourse for users under such circumstances, as the finding of the FCU cannot be challenged before a grievance redressal forum. It had also expressed apprehensions about the authority of the FCU and the extent of its powers.

Petitioners also argued that it is also violative of the right to equality, as the provision is only concerned with the business of the central government and doesn't tackle fake news against non-governmental organisations.

However, according to the centre's counsel, these concerns are out of place and unnecessary. Solicitor General of India, Tushar Mehta, submitted that the intermediaries are not required to remove content that the FCU has flagged. They do have the option to host such content at the risk of losing a safe harbour, he said. The idea is the resolution of any dispute and not to mandatorily take down any content, Mehta said.

Mehta assured that the FCU is not concerned with ideas and opinions and would only deal with information propagated as facts. The intent is to prevent the propagation of harmful information and not to scuttle the free flow of expression as apprehended by the petitioners, he said.

The court reserved the order after hearing both parties.