Bombay HC seeks Centre's affidavit on plea challenging IT rules amendment to identify fake news on social media

The Bombay High Court on Tuesday directed the Centre to file an affidavit in response to a petition filed by stand-up comedian Kunal Kamra challenging an amendment to the Information Technology Rules which empowers the Centre to identify fake news on social media against the government.

A division bench of Justices Gautam Patel and Neela Gokhale said the government in its affidavit shall state why the amendment was required.

”Was there any factual background or reasoning that necessitated this amendment? The petitioner (Kamra) is anticipating some kind of impact due to this amendment,” the court said while directing the Centre to file its affidavit by April 19.

The bench posted the petition for further hearing on April 21.

Kamra in the petition claimed to be a political satirist who relies on social media platforms to share his content. He said the Rules could potentially lead to his content being arbitrarily blocked or his social media accounts being suspended or deactivated, thus harming him professionally.

Kamra in the petition has sought the court to declare the amended rules as unconstitutional and a direction to the government to restrain from taking action against any individual under the rules.

On April 6, the Union government promulgated certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

Under the amendments, the government added a provision of a fact-check unit to identify fake or false or misleading online content related to the government. Against such content identified by this unit, intermediaries, such as social media companies, will have to act or risk losing their “safe harbour” protections in Section 79 of the IT Act, which allows intermediaries to avoid liabilities for what third parties post on their websites.

This amendment was challenged through a petition filed on Monday by Kamra, who termed it as violative of the fundamental rights of citizens of this country.

Kamra’s counsel Navroz Seervai submitted to the court that the rule would have a “chilling effect” on the freedom of speech and expression of all citizens of this country, especially those who post comments and videos on political developments as a profession.

“This amendment is against the interest of the public at large, but only in the interest of the government, ministers, and others in power. The amendment has no provision for a hearing or appeal. This is against the principles of natural justice,” Seervai claimed.

Seervai sought an urgent hearing on the petition, but Additional Solicitor General Anil Singh, appearing for the Union government, sought time to file an affidavit as the petition challenges the validity of the rule. Kamra in his petition said the rules require social media intermediaries to censor or modify content that relates to the central government, if the government mandated fact-checking body directs them to do so.

”The rules are manifestly arbitrary, as they entail the central government acting as a judge and prosecutor in its own cause, thus violating one of the most fundamental principles of natural justice,” the petition said.

It said these rules make the government the “sole arbiter of truth or falsity of speech”.