Today, during the pronouncement of the verdict by the division bench of Justices GS Patel and Neela Gokhale, it was stated that the division bench has written two separate judgments. As per a report in the Bar&Bench, the judgment of Justice Patel is in the favour of the petitioners while the judgment by Justice Gokhale has held against the petitioners and has upheld the validity of the 2023 amendment rules. It was further provided by the bench that since the division bench has not been able to reach a decision, the case will now go back to the Chief Justice of the High Court, who will then assign the same to a third judge.

While the bench had suggested a period of four weeks for the Chief Justice to form a third bench, Solicitor General Tushar Mehta expressed his issue with continuing the stay on the amendment any further. To this, the bench had then pointed that the same stay had been continuing since April of 2023. With this, a period of ten days has been given for the same. Notably, the stay on the said amendment to the IT Rules will also be continued till then.

What is problematic about the IT Rules, 2023? 

The IT Rules, 2023 bring a new twist to Rule 3(b)(v) of the IT Rules, 2021, shaking up the landscape for intermediaries’ due diligence. Under the amendments, intermediaries are now tasked with going above and beyond to prevent users from publishing or circulating any content related to the Central Government that’s deemed “fake,” “false,” or “misleading.” What’s more is that this determination will be made solely by a “fact check” unit handpicked by none other than the Central Government itself. Failure to keep up with “due diligence” could lead intermediaries down a treacherous path, risking their safe harbour status under Section 79 of the IT Act, 2000.

Feeling suffocated by the new regulations, political satirist and comedian Kunal Kamra (filed on April 10, 2023), the Association of Indian Magazines and the Editors Guild of India, have filed writ petitions before the Bombay High Court challenging the constitutionality of this provision. In his bold move, Mr. Kamra, particularly, argues that these rules not only strangle freedom of expression and speech but also defy natural justice while infringing upon Article 14, 19(1)(a) and 19(1)(g), going beyond the boundaries set by Section 79 of the IT Act, 2000. The Union’s response merely echoes the purported purpose of these rules – to combat misinformation – asserting that it seeks to shield against false news rather than curtail creators’ rights.

Deep diving into Kamra’s petition

Kunal Kamra’s stand against the new IT Rules, 2023 encompasses a compelling array of reasons:

1. Being ultra vires Section 79 of the IIT Act, 2000

Section 79 of the IT Act is like a protective shield for social media intermediaries, keeping them safe from any faults in user-generated content. It’s like a “safe harbour” that protects them. Mr. Kamra highlights Shreya Singhal’s view on how notifications should be handled through a court order rather than just by the Central Government alone. The IT Rules, 2023 seem to give the Central Government too much power, allowing them to act as both judge and prosecutor without involving the Court at all—quite different from what Section 79 originally set out.

2. Violates the freedom of speech and expression enshrined in Article 19(a)

The enigmatic IT Rules, 2023 leave the phrases “any business of the Central Government,” “fake or false or misleading,” and “reasonable efforts” shrouded in ambiguity, opening doors to interpretation that could encompass nearly every facet of life under a welfare state. The case of Shreya Singhal v Union of India, (2015) 5 SCC 1 struck down oppressive limitations on freedom of speech and expression, denouncing their vague and overreaching nature. Confinement of the freedom of speech and expression have been deemed to the unconstitutional on grounds of ‘over-breadth or vagueness. The inexplicable “business” is largely overbroad and vague and a boundlessly manipulable term. The “chilling effect” wherein the “imprecise speech-restriction laws leave a large grey area within which citizens are guessing where the line between legality and illegality lies” is put into effect by broad imaginations of the IT Rules, 2023. The IT Rules, 2023 will compel intermediaries to give precedence to removing content flagged by the government’s fact-checking unit to protect their safe harbour provisions from being jeopardized.

3. Fails to meet the rightful boundaries on freedom of speech and expression as outlined in Article 19(2)

Speech shall not be constrained without proper justification within the framework of Article 19(2) and must not extend beyond its provisions. The category of “fake or false or misleading” content is absent from Article 19(2). Additionally, the IT Rules, 2023 fail to meet the proportionality test, which mandates the selection of the least restrictive option. Numerous less constraining alternatives exist, including issuing clarifications or corrections concerning information that the government considers erroneous in relation to its operations instead of mandating intermediaries to remove online content.

4. Violates the right to freely pursue one’s chosen trade or profession under Article 19(g)

The petition proclaimed that the IT Rules, 2023 trample upon the freedom of Mr. Kamra to practice as a political satirist under Article 19(g). It expressed deep concern that his content might be selectively targeted by the Central Government and scrutinized by the ‘fact check’ unit, possibly resulting in the deprivation of his social media privileges. Furthermore, the petition conjectured that fellow political satirists may resort to self-censorship or steer clear of engaging in political discourse.

5. Violation of Article 14 is also presented on multiple aspects

The act of making the Central Government decide upon the material that relates to its “business” violates principles of natural justice, is arbitary, inimical to the law, and would lead to a situation wherein any critical matreial will be vulnerable to being demeed “misleading.” The censorship enjoyed solely by the Central Government and no other entity makes the IT Rules, 2023 contray to law as “right ot be heard” under Article 14 prohibts such privilage.

The Union’s Response

A response affidavit was filed by the Union on April 21, 2023. The response asserted that Mr. Kamra’s petition was ‘premature’ and that the IT Rules, 2023 were issued in ‘public interest’ to combat the dissemination of ‘fake news’. According to the reply, the issuance of these Rules does not diminish any right for an aggrieved party to seek legal remedy if they believe information has been wrongly flagged. Additionally, it was assured by the Union that the function of the Fact Checking Unit would not be assumed until a final verdict is reached.

Further proceeding

In June 2023, the Bombay High Court issued a directive to assemble all these petitions for an eagerly anticipated final hearing on July 6 and 7, 2023. Amidst this, Senior Advocate Navroz Seervai, representing Mr. Kamra, artfully voiced profound concerns about the IT Rules, 2023 while casting doubts upon the government’s capacity to judiciously adjudicate these matters while honoring the sacred tenets of natural justice. Additionally, Mr. Gautam Bhatia on behalf of Association of Indian Magazines vocally opposed the government’s unilateral push to monopolize truth. He shed light on the subtle coercion embedded in the IT Rules, 2023, warning that intermediaries could lose their safe harbour protection if they don’t comply with fact-check directives. This, he cautioned, would result in intermediaries prioritizing commercial interests over users’ free speech rights. Emphasizing its potential impact on free speech in India, he underscored the urgency of protecting it from excessive governmental control.

Next, September 26 and 27, 2023, the Solicitor-General of India Mr. Tushar Mehta highlighted the fact-check unit’s quest to vanquish patently false government-related content and dealing with misinformation. The intent behind the rules strays away from constricting practices of satire and criticism of the government rather focuses on restricting the spread of false and misleading information.

The closing statements before the Division Bench, with Justices Guatam Patel and Neela Gokhale presiding, took place on September 29, 2023. The eagerly anticipated verdict is now reserved for January 31, 2024!

Why are we concerned with the IT Rules, 2023?

The creation of the fact check unit under the IT Amendment Rules, 2023 will empower it to determine the validity of information and decide on its online presence. Failure by intermediaries to remove flagged information may lead to them losing their safe harbour protection under Section 79 of the IT Act. This could have a significant impact on freedom of press in India’s cyberspace. The looming spectre of fake news and misinformation poses a dire threat to the bedrock of democracy like never before. These deceitful narratives not only stoke discord among different sectors globally but also sow seeds of distrust in verifiable information. While it is imperative for authorities to institute necessary safeguards against this growing menace, an administration facing grave allegations on this very issue must be wary that its recent actions are viewed as a direct assault on foundational rights and constitutional principles.

Brief about the laws governing the digital domain in India:

The Information Technology Act, 2000 (IT Act, 2000) stands as the foremost law addressing the realm of electronic data and information technology. The IT Act, 2000 put forwards important definitions that the Information Technology Rules use to formulate guidelines. One of them is intermediary. In the world of electronic records, an intermediary is anyone who handles a record on behalf of another. This can include telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites and even cyber cafes. Section 79 of the IT Act, 2000 a powerful function known as “safe harbour” is inscribed. It proclaims that an intermediary shall be shielded from liability for third-party information hosted by a user, under certain conditions. These conditions demand unwavering diligence in carrying out their duties under this Act and adherence to the guidelines prescribed by the Central Government for this purpose.

Over the years, the Act has gone through various amendment making it much more problematic in regards of the digital vision that the Government plans to showcase. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) were introduced by the Government to override The Information Technology (Intermediary Guidelines) Rules, 2011. The IT Rules 2021 provided with distinctions between types of intermediaries and engages in collaborations with purveyors of breaking news, current affairs, and meticulously curated online content.

Since the introduction of the IT Rules, 2021, a whirlwind of 17 diverse challenges contesting its constitutionality has swept through various High Courts of India. These legal actions have been initiated by individuals, associations, and organizations alike. A few among them are LiveLaw, WhatsApp LLC, Uday Bedi, News Broadcasters Association, The Leaflet, and Foundation for Independent Journalism. The Union of India had requested for the transfer of cases to the Apex Court, the cases remain ongoing.

The newest update unfolds on April 6, 2023, as the of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendments Rules, 2023 (IT Rules, 2023), bringing a wave of petitions.

Furthermore, Cable Television Networks (Amendment) Rules, 2021 were also introduced by the Information and the Broadcasting Ministry. Through this, a new self-regulating, grievance redressal system was introduced to put the obligation of the content being circulated on the broadcasters. Several prominent voices, including The Wire, LiveLaw and The Quint, have raised strong objections against the recent government directive for digital media. They argue that it infringes upon the IT Act, 2000 and undermines the constitutional right to media freedom.

(The backgrounder to this article  has been researched by CJP’s legal interns team including Karishma Jain)

Related: 

Serious flaws in the Digital Personal Data Protection Act

Registration of digital fact-checking sites with govt may be a part of the future Digital India Bill

GoI targeted Apple days after the Hi-tech cos notified journalists & opposition politicians of phone hacking: Washington Post Exclusive

India’s 2023 bad laws: Impact on Individual Freedoms and Indigenous Rights in a weaponised state

Broadcasting Bill adverse to freedom of speech & freedom of press: EGI

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A petition was filed in the Bombay High court by Mumbai based comedian and satirist Kunal Kamra, challenging the constitutionality of a provision of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Amendment Rules, 2023). Earlier provisions in the amended rules of 2021 have been stayed by high courts. This latest provision allows for the central government’s fact checking authority to declare a piece of content related to ‘any business of the union government, ‘fake’ or ‘misleading’ upon which the intermediary -for example, a social media platform- should essentially take the content down. The Bombay HC has directed the Ministry of Electronics and Information Technology (Meity) to file its response within one week on why the IT Amendment Rules, 2023 should not be stayed, and also describe the factual background that necessitated the issuance of the amendments. The matter will now be heard on April 21.

This is an important development for two reasons. The fake news eco system across the world is on the rise and especially with the advent of deepfake technology that could be available to the general public, the believability of misinformation is at a peak, an all-time high. Therefore, if the government’s amendment monopolises the decision-making power on which information regarding itself is correct and which is not, it raises questions of transparency and accountability. Secondly, this also could hold serious implications for the right to free speech in the country since the state can intrude into what can be said about it and what cannot be, in an unprecedented manner.

In addition to add a twist to the tale so to speak, the party that constitutes the current government in power at the centre has been specifically accused of creating bands of social media accounts and other misinformation driven mechanisms and outfits that are itself held guilty or responsible for generating both disinformation and misinformation. Under these circumstances then, can that self-same government be neutral in implementing rules that are already created to arm the state in controlling thoughts and free flow of information?

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The first part of this article will discuss a brief background to the IT rules in question and the corresponding sections or provisions. The second part will discuss the change brought in by the amendment and analyse it vis-à-vis the fundamental rights as provided in the constitution.

IT Act and Rules

The Information Technology Act, 2000 is the primary legislation as of now to deal with electronic data and information technology. This act harbours a concept called the intermediary. Who is an intermediary? The act defines intermediary as with respect to any particular electronic records, any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes. This definition encompasses all current social media giants such as Facebook, Twitter etc.[1]

One of the main functions of this definition can be found in Section 79. Section 79 states an intermediary shall not be liable for the third-party information it does not have connection to and is hosted by a user, provided some conditions are fulfilled. These conditions include the intermediary observing due diligence while discharging his duties under this Act and also observing such other guidelines as the Central Government may prescribe in this behalf.

Simply put, this provision states that in addition to the conditions which are to be fulfilled by the intermediary for it to be not liable for the information hosted on its server, provided it follows the guidelines given by the central government. If the intermediary does not follow such guidelines, the entity would lose the immunity from liability.

In 2011, the government promulgated the Information Technology (Intermediaries guidelines) Rules, 2011 which dealt with the due diligence that is to be observed by the intermediary. There were also the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 which dealt with data security and security protocols to be followed by intermediaries etc.

The government, in 2021, promulgated Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 to supersede the IT (Intermediary Guidelines) Rules, 2011. The 2021 Rules had separate provisions for intermediaries, social media intermediaries and significant social media intermediaries. The Part III of these rules-Code of Ethics and Safeguards in relation to Digital Media- deals with the publishers of news, current affairs and online curated content.

It was in October 2022 that the rules were amended and again in 2023. Several news outlets and individuals have challenged the earlier 2021 rules. The Wire, LiveLaw, The Quint and Pratidhwani are among the petitioners who have challenged the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Initially various high courts in Maharashtra, Kerala, Delhi and Tamil Nadu had stayed the operation of the rules. In addition, 13 media outlets under the banner of Digital News Publishers Association (DNPA) and journalist Mukund Padmanabhan had moved the Madras high court against the IT Rules. Carnatic musician, author and activist T.M. Krishna had also moved Madras high court with a plea against the IT Rules. Thereafter, in May 2022, the union of India moved the Supreme Court for a transfer of all petitions there. The matter rests there. The same stay also applied to petitions challenging the Cable TV Networks (Amendment) Rules, 2021.

Now, Kunal Karmra has challenged the relevant provision and the provision which has been challenged in the Bombay High court is the Rule 3(1)(b)(v) The relevant portions before and after amendment are given in the table below for clear understanding.

IT Rules 2021	2022 Amendment	2023 Amendment
Due diligence by an intermediary: An intermediary, including social media intermediary and significant social media intermediary, shall observe the following due diligence while discharging its duties, namely:— (a)…. (b) the rules and regulations, privacy policy or user agreement of the intermediary shall inform the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that,— (i)…. (ii)… (iii)… (iv)… (v) violates any law for the time being in force	(1) Due diligence by an intermediary: An intermediary, including social media intermediary and significant social media intermediary, shall observe the following due diligence while discharging its duties, namely:— (a)… (b)the intermediary shall inform its rules and regulations, privacy policy and user agreement to the user in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice and shall make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that,— (i) (ii) (iii) (iv) (v) deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature;	(1) Due diligence by an intermediary: An intermediary, including social media intermediary, significant social media intermediary and an online gaming intermediary, shall observe the following due diligence while discharging its duties, namely:— (a)… (b) the intermediary shall inform its rules and regulations, privacy policy and user agreement to the user in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice and shall make reasonable efforts by itself, and to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that,— (i) (ii) (iii) (iv) (v) deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature or, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify.

What is the impact of this amendment?

The amendment states, simply put, the intermediary should make reasonable efforts to desist from using any information that is “patently untrue, or misleading” or could “mislead or deceive” related to any business of the central government a user on its server is hosting, the credibility of being usual information if the government flags it as fake or misleading.
For example, a person, A,  goes to use a toilet built under a flagship scheme of Central government in a city only to find out that the toilet does not have water for her to use. A puts up a post on twitter saying “The government seems to be so corrupt, omg, what even is this scheme where they build toilets in cities but there is no water in them. Is this a sneaky way to encourage the toilet paper industry? LOL!”

Although it is unlikely that this would be considered as misleading- let us assume for a minute that the government’s agency for fact checking considers this as misleading since according to its data, all toilets built under the scheme has consistent water supply. If the ministry flags this tweet as misleading, Twitter should cause the user to not host or transmit or share this information. What are the ways in which a platform like Twitter could do this? It could block the tweet, it could temporarily deactivate the user’s account, so on and so forth. It could flag the content as fake or misleading etc.

What effect does this have on A? She not only experienced a water shortage in a toilet but also when she lamented about it-exercising Article 19(1)(a) of the Indian Constitution-her right was curtailed. This is not to say the incident will happen but given the powers of the fact check unit of the Central Government and the usage of words “and untrue or misleading in nature or, in respect of any business of the Central Government,” it is within the powers of the authority to do that, without even hearing what A has to say.

Article 19(1)(a) of the constitution guarantees the right to freedom of speech and expression and the reasonable restrictions can be imposed on the exercise of this right by the state on the grounds of  the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. The amended Rule 3(1)(b)(v) gives the power to curtail the right to freedom of speech and expression without specifying any of these grounds, thus charting a broad range of grounds for itself beyond what constitution provides for.

The Supreme Court in the case of Shreya Singhal vs. Union of India, referring to the broad and vague nature of the now unconstitutional Section 66A of the IT Act, stated as follows:

In point of fact, Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.

The court, while holding the provision to be ultra vires the constitution, stated as follows- We, therefore, hold that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.

Apart from being violative of Article 19, by making the central government the sole judge in its own case with respect to information related to any of its business is against the principle of Natural Justice and thus violative of Article 14 of the Constitution.

Fake news and misinformation threaten the very structure of democracy in an unprecedented way. Fake news ecosystems are also being used to flare up sectoral tensions, across the world. It may be normal, even needed, for governments to bring in fair measures to rein in this fake news monster. However, for a government itself seriously accused and in the dock on this front, it is important to see the latest measures as an attack on both fundamental rights and constitutional ethos.

(The author is a legal researcher with the organisation)

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