Mentor’s Comment:  Today’s editorial discusses the limitations and importance of free speech, emphasizing that while individuals have the right to express their opinions without fear of retaliation, this right is not absolute. Key restrictions include defamation, obscenity, and incitement to violence. The article highlights that the government cannot arbitrarily decide what constitutes acceptable speech, as outlined in Article 19(2) of the Constitution. It also notes that free speech serves both instrumental purposes, like fostering better politics, and intrinsic values, such as recognizing individual dignity. However, the government’s attempt to control narratives about its actions can lead to censorship, undermining democratic principles.

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Let’s learn!

Why in the News?

Bombay HC ruled against an amendment to the IT Rules, declaring it unconstitutional and upholding free speech rights.

• It emphasized that while misinformation is a concern, any regulatory measures must align with constitutional rights, particularly Articles 14 and 19, which protect equality and freedom of speech.

What did the IT Rules (2021) say?

• Rule 3(1)(b)(v) of the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 imposes strict obligations on internet intermediaries, such as service providers and social media platforms.
• If the government’s “Fact Check Unit” labels any reporting about its activities as false, these companies must take steps to avoid hosting that content.
• Failing to comply could result in losing their “safe harbor” protection from legal liability under the IT Act, 2000, which safeguards free expression.
• Section 79 of the IT Act provides a legal shield for intermediaries (safe harbour), such as social media platforms, by protecting them from liability for content posted by third parties, as long as they take reasonable steps to comply with the law.

Various views presented through the ‘Petition and Response’:

• According to the Petitioners’ argument, Rule 3(1)(b)(v) breaches protections for free speech and the State wrongly claims authority to define “fake” information, ignoring less intrusive solutions.
• However, the Union Government responded that the law is not coercive and that intermediaries can contest safe harbor losses. While no Constitutional protections are given for false information, regulation of online expression is within government powers.
• As per the Judicial opinion, Rule 3(1)(b)(v) is ultra vires, vague, overbroad, and chilling to free speech. Further, the loss of safe harbour does not threaten free expression.

Present Issue over the Intermediaries and Safe Harbour

• On Intermediaries: Under Rule 3(1)(b)(v), if the government’s “Fact Check Unit” informs an intermediary that certain information about the government is ‘false’, the intermediary faces a difficult choice: they can either remove the flagged content or defend the user’s right to express their opinion, risking their safe harbour protection in the process.
  • Here, the intermediaries often prioritize their business interests over the user rights.
  • They may choose to remove content rather than risk losing their legal protections, effectively sacrificing users’ freedom of expression for their own safety.
• On Safe Harbour: Intermediaries can lose the protection under Section 79 of the IT Act if they are aware of illegal activities occurring on their platforms or receive notifications from government agencies about such activities.
  • Platforms like Facebook, X (formerly Twitter), and WhatsApp serve primarily as hosts for user-generated content.
  • They do not create this content themselves, which allows them to promote free speech without bearing the same responsibilities as traditional publishers.
• Its limitations: True free speech depends on various factors, including access to resources and social dynamics, which can hinder individuals from expressing themselves fully.

Conclusion: While free speech can be reasonably limited, there is no constitutional basis for restricting false or misleading information. The government’s attempt to control narratives about its actions represents censorship and undermines democratic principles, as recognized by the Bombay High Court.