Bombay HC strikes down Centre’s amended IT rules
- September 21, 2024
- Posted by: OptimizeIAS Team
- Category: DPN Topics
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Bombay HC strikes down Centre’s amended IT rules
Sub: Sci and Tech
Sec: Awareness in IT
Context:
- The Bombay High Court struck down crucial provisions of the amended Information Technology Rules, 2023.
- The rules empowered the Centre to set up a fact check unit (FCU) to identify fake, false and misleading information about the government and its establishments on social media.
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023:
- In 2023, the Ministry of Electronics and IT (MEiTY) amended the IT Rules, 2021 to establish a Fact Check Unit (FCU) tasked with identifying and flagging false, fake, or misleading information about the government on social media and other online platforms.
- As per the rules, the government can ask social media platforms such as Facebook, X, Instagram, YouTube to remove any content/ news related to the “business of the Central government” that was identified as fake, false, or misleading by the FCU.
- The rule also imposed a duty on intermediaries like social media platforms and news websites to take down content flagged by these units, effectively granting the government sweeping powers to determine the truthfulness of online content.
- If intermediaries do not comply with the organisation’s decision, they may lose their safe harbour status under Section 79 of the IT Act, 2000.
- The amendment also provided for Grievance Appellate Committees to allow users to appeal against the inaction of, or decisions taken by intermediaries on user complaints.
About the case:
- The amendments were challenged by petitioners, including comedian Kunal Kamra, Editors Guild of India, Association of Indian Magazines and the News Broadcasters & Digital Association.
- Petitioners argued that these provisions violated the constitutional right to free speech under Article 19(1)(a) and amounted to unchecked censorship, undermining the principle of independent journalism and public discourse.
- The case revolved around the constitutionality of 2023 amendments introduced to the IT Rules, 2021, specifically Rule 3(1)(b)(v), which authorised the central government to establish FCU to identify fake news.
Fact Check Unit (FCU): The rules allowed the government to establish an FCU to identify “fake, false, or misleading” information about the government on social media.
| A Fact Check Unit (FCU) is a government-established body designed to verify the accuracy of information, particularly on digital platforms. Its primary function is to identify and flag fake, false, or misleading information related to specific topics, such as the central government’s activities, policies, or establishments. |
Fact-Check Unit (FCU): The IT Ministry will notify the FCU, which will identify fake, false, or misleading information about the government. Content flagged by FCU must be removed by intermediaries, failing which, their legal protections will be revoked.
Self-Regulatory Bodies (SRB) for Online Gaming: Online gaming platforms must register with an SRB, which will assess if a game is permissible. Gambling and betting elements are prohibited in online games, and platforms must meet legal standards like parental controls.
Concerns Regarding the IT Amendment Rules, 2023
| Concern | Description |
| No Clear Definition of Fake News | The rules do not define what constitutes fake news, leaving it up to the Fact-Check Unit to decide the truth, giving the government unchecked power. |
| Arbitrary Power to Censor | The lack of a clear definition for “fake, false, and misleading” information allows the government to arbitrarily censor online content. |
| Vagueness in Terminology | Phrases like “in respect of any business of the state” are vague and give the government excessive power to decide what information can be published online. |
| Violation of Supreme Court’s Judgment | The rules may violate the Supreme Court’s 2015 ruling in the Shreya Singhal vs Union of India case, which struck down vague laws that curtail free speech. |
| Lack of Transparency in FCU | The qualifications and processes for the FCU are not clearly outlined, raising concerns about accountability and transparency. |
Reasons for the strike down:
- Violation of the constitution: Supreme Court said that the rules violated fundamental rights under:
- Article 14 (right to equality)
- Article 19 (freedom of speech and expression)
- Article 19(1)(g) (freedom and right to profession)
- Lack of clarity: The expression “fake, false and misleading” in the Rules was vague in the absence of any clear definition. It empowered the government to decide what constitutes false or fake news without any objective criteria, clear definitions or procedural safeguards.
- Chilling effect: SC held that the unchecked power given to the centre could have a “chilling effect” not only on an individual but also social media intermediaries or platforms.
- Fake news and misinformation do not amount to reasonable restrictions to the right to free speech rights.