The change to the Information Technology (IT) Rules that allows the government to identify “fake news” about itself on social media platforms has been contested by comedian Kunal Kamra, and the Bombay High Court on Tuesday ordered the Central Government to respond with an affidavit. Hearing Kamra’s appeal was a divided bench comprising Justices Gautam S. Patel and Neela K. Gokhale.
On April 6, the Ministry of Electronics and IT (MEiTY) promulgated the 2023 Rules, which further amended the Information Technology Rules, 2021, and allowed the ministry to appoint the fact-checking unit. The online content marked as such by the fact-checking body as “fake or misleading” will have to be taken down by online intermediaries if they wish to retain their “safe harbour”, which is the legal immunity they enjoy against third-party content.
Rule 3(1)(II)(A) and (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 have been contested by Kamra. Through senior attorney Navroz Seervai, Kamra claimed that the said Rule, if it were to be put into force, would change Rules 3(1)(a) and 3(1)(b)(v) of the IT Rules, 2021, and that it would also contravene a number of other Supreme Court rulings.
Seervai referred to the August 14, 2021, order of the Bombay High Court bench led by then Chief Justice Dipankar Datta, who is now a judge on the Supreme Court, that had stayed two clauses of Rule 9 of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, describing “the indeterminate and wide terms” as prima facie against the right to freedom of speech guaranteed by the Constitution and going beyond that the “substantive law of IT Act”.
In the petition, it was claimed that if the rules weren’t temporarily suspended, the petitioner and other Indian citizens would suffer “grave and irreparable harm, injury, and prejudice.” In addition to asking the court to halt the Center from enforcing the modified Rules while his appeal was being heard, Kamra asked the court to issue an order declaring the challenged Rules to be unlawful.