INTRODUCTION

The Bombay High Court ("BHC") has recently rendered a split verdict in a batch of writ petitions challenging the constitutional validity of Rule 3(i) (II)(A) and (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 ("2023 Amendment") which amended Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 ("IT Rules"). While Justice GS Patel has struck down the 2023 Amendment as being unconstitutional, Justice Neena Kedar Gokhale has upheld the 2023 Amendment holding that it does not violate fundamental rights. The matter has now been referred to Justice AS Chandurkar of the BHC to render his tie-breaking opinion.

The primary basis of the challenge to the 2023 Amendment is the authority vested in the Fact Check Unit ("FCU") of the Central Government under Rule 3(1)(b)(v) to determine the veracity of content on intermediary platforms in respect of the business of the Central Government. The petitioners have contended that this is violative of fundamental rights of free speech, the right to carry on a legitimate profession and the right to equality under the Constitution of India ("Constitution").

2023 AMENDMENT TO RULE 3 OF THE IT RULES AND THE CONSTITUTION OF THE FCU

On 6 April 2023, the Ministry of Electronics and Information Technology ("MEITY") notified amendments to the IT Rules. A pivotal change introduced by the 2023 Amendment conferred authority upon MEITY to designate an FCU, tasked with identifying false or misleading information being hosted across any intermediary platform. The 2023 Amendment, expressly prohibited individuals accessing or utilising intermediary platforms from posting / disseminating content flagged as fake, false, or misleading by the FCU, in respect of any business of the Central Government.

In response to the growing challenge of misinformation, the Press Information Bureau ("PIB") has proactively spearheaded efforts to combat fake news concerning the Government of India. In November 2019, the PIB established a dedicated FCU with the purpose of addressing the proliferation of fake news regarding the Government of India and other Central Government entities.

ARGUMENTS OF THE PETITIONERS:

The petitioners argued that the 2023 Amendment to Rule 3(1)(b)(v) prohibits an intermediary from hosting information in respect of any business of the Central Government which is patently false and untrue or misleading in nature or has been identified as fake or false or misleading by FCU of the Central Government. Arguing further, that neither the IT Rules, nor the Information Technology Act 2000 ("IT Act"), provide criteria on the basis of which content can be classified as 'fake, false or misleading', nor do the IT Rules or the IT Act clarify what constitutes information in relation to the 'business of the Central Government'. Therefore, the Petitioners' primary grievance with the 2023 Amendment is that the FCU has been designated as the sole authority to classify content as false or misleading, for which the IT Rules and IT Act do not provide sufficient checks and balances. The Petitioners further argued that the mere hosting of content, in respect of which the FCU can act, would cause an intermediary to run the risk of losing its safe harbour protection under Section 79 of the IT Act.

KEY HIGHLIGHTS OF THE SPLIT VERDICT:

  • 'Reasonable efforts' by an intermediary:
    • Justice Gokhale's judgment interprets the 2023 Amendment as beneficial to intermediaries, taking away (to an extent) the obligation to subjectively determine whether information on its platform is misleading, on a 'reasonable efforts' basis. In Justice Gokhale's view the 2023 Amendment now places the responsibility on the FCU to notify the intermediary of false or misleading information in respect of the business of the Central Government, pursuant to which the intermediary must make 'reasonable efforts' to take down such information. Holding, therefore, that the 2023 Amendment saves intermediaries from having to expend resources in assessing the veracity of content on their platform, while the standard for 'reasonable efforts' in respect of removal of such content remains the same. Justice Gokhale therefore concluded that the 2023 Amendment does not automatically deprive intermediaries of safe harbour protection, and this will occur only if the intermediary intentionally communicates such information to users despite the same being identified as false. The rule under challenge, therefore, targets misinformation that is circulated with the knowledge and intent of the user, depicting actual malice on the part of the user in sharing such information.
    • Justice Patel, however, interpreted the 2023 Amendment in light of the passive role of intermediaries in hosting content, taking the view that the 2023 Amendment effectively censors user content, by shifting responsibility for content accuracy from the creator/ originator of the content to the intermediary service provider, which has no control over the content. Justice Patel's judgment acknowledges that even in a situation where the FCU classifies content as fake, false or misleading, the absolute removal of such content is not a certain possibility, given that content by its very nature is proliferated and repeated. Therefore, despite 'reasonable efforts' the intermediary runs the risk of losing safe harbour protection.
  • Possibility of issuing a disclaimer:
    • During the course of arguments, the Union of India stated that there is no 'take down' mandate under Rule 3(1)(b), and the intermediary has the option to issue a disclaimer in respect of information classified as fake by the FCU. While Justice Gokhale agreed with this interpretation, Justice Patel was of the opinion that the IT Rules do not contemplate a disclaimer, given the emphasis on the words 'not to host'.
  • Potential bias by the FCU:
    • Justice Patel is of the view that the 2023 Amendment in so far as they designate the FCU as the sole arbiter of what information can be classified as 'fake, false or misleading', without any guidelines on how such classification is to be made are overbroad and arbitrary, given that this is an inherently subjective analysis. Justice Patel holds further that the anticipated future impact of this rule is sufficient basis to arrive at this conclusion, and the lack of current instances of violation is not sufficient to rule out the possibility of future violations.
    • Justice Gokhale has taken the opposite view to say that it cannot be presumed that the FCU will exercise its powers arbitrarily, or in a biased manner merely because it is constituted by the Central Government. In Justice Gokhale's view the apprehension that the rule will be applied arbitrarily in the future, is not sufficient basis to strike down the 2023 Amendment, today. Holding that in the event of any actual violation in future, individuals can always approach courts or avail of the grievance redressal mechanism notified by the intermediary under the IT Rules.
  • Differential treatment of information relating to the business of the Central Government:
    • Justice Patel also found that the 2023 Amendment violates the right to equal treatment under Article 14 of the Constitution as, in his view, there is no particular reason why information in relation to the business of the Central Government should receive a higher standard of protection than any other individual or news agency.
    • Justice Gokhale has differed with this view to state that the unamended rule already deals with patently false and misleading information with the knowledge and intent of the user. What the 2023 Amendment does is to merely cull out and scrutinize information relating to the business of the Government, given that the Government is best placed to provide correct facts in respect of the conduct of its own business.

CONCLUSION:

The IT Rules have remained a subject matter of considerable debate since their very enactment, with several writ petitions filed before various High Courts across the country challenging their constitutionality on various grounds even prior to the 2023 Amendment. These writ petitions have been transferred to the Supreme Court and are currently pending adjudication. A common concern across these petitions is the potential misuse of these rules, one aspect of which is yet again left undecided by the BHC's split verdict. The ruling of the third judge, Justice Chandurkar, will therefore play a significant role in resolving this deadlock, and is likely to have larger implications in respect of the pending challenges to these rules, and how the IT Rules are viewed, and implemented.

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