Introduction

A two-judge Bench of the Bombay High Court recently delivered a split verdict on a comedian’s petition challenging the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.
These rules grant the government the authority to establish a fact-checking unit (FCU) to identify fake, false, and misleading information about the government on social media platforms.
The case will now be referred to a third judge by the Chief Justice of the Bombay High Court due to the disagreement between the two justices.

Provisions of IT Rules (2023)

Fact-Checking Unit (FCU): Amended IT rules empower the government to establish an FCU to identify and remove fake, false, or misleading information related to the Central government’s business on social media platforms.
Consequences for Non-compliance: Failure to comply with FCU directives may result in intermediaries losing their safe harbour protection under Section 79 of the IT Act, 2000.

Unfettered Power: The Court expressed concerns about the government’s unfettered power in the absence of clear guidelines and guardrails, emphasizing the need for necessary safeguards.
Ambiguity in Terms: The Court noted ambiguity in terms like “fake, false, and misleading” which are subjective and open to interpretation, posing challenges in distinguishing between them.
Selective Application: The Court questioned why the IT Rules exclusively targeted digital media, leaving print media unaffected, especially when the same content appears in both forms.
FCU’s Role: Concerns were raised about the FCU’s role and the absence of recourse for users whose content is removed after being flagged by the FCU. The Court expressed worries about the user’s lack of remedy in such cases.
Overreach: The Court raised concerns about the potential overreach of the Rules, emphasizing that even well-intentioned regulations must have limits to avoid excessive use of power.
Lack of Opportunity for Defense: The Court found it remarkable that there was no provision in the Rules allowing an intermediary to defend or justify flagged content, violating principles of natural justice.

Petitioners’ Stand: The petitioners argued that the amendment violated freedom of speech and expression under Article 19(1)(a) and did not satisfy reasonable restrictions under Article 19(2). They contended that the government’s power to decide the truth of content was excessive.
Government’s Stand: The government defended the FCU, stating that it would only notify intermediaries about flagged content, and the intermediaries could choose to remove it or add a disclaimer. Users aggrieved by intermediary decisions could seek legal remedies in court.

The split verdict highlights the complexity and significance of the IT Rules (2023) and their potential impact on freedom of speech and expression.
The Court’s concerns about ambiguous terms, selective application, and lack of safeguards underscore the need for a balanced approach to regulate online content while protecting fundamental rights.
The case’s referral to a third judge will determine its outcome and implications for digital media regulation in India.