Amended IT rules not meant to curb free speech, criticism: Centre to HC

India's Solicitor General, Tushar Mehta, assured the Bombay High Court that new IT rules enabling the government to filter social media for fake news were not meant to curb free speech, criticism, humour or satire targeting even the prime minister. The court questioned the lack of guidelines to determine what is considered fake and misleading. Mehta argued that the rules only apply to fake and false facts, not opinion or criticism. The court noted that the term 'information' in the rules is not limited to facts, but includes opinion, criticism, and parody.

Solicitor general Tushar Mehta on Tuesday assured the Bombay high court that the new information technology (IT) rules, which empower the Central government to set up a fact-checking unit (FCO) to filter social media platforms for fake news or misleading information, were not meant to curb free speech, criticism, humour or satire targeting even the prime minister.

12 March 2018, Mumbai: Kunal Kamra - Stand-up comedian . Photographed by Abhijit Bhatlekar/Mint

A division bench of justice Gautam Patel and justice Neela Gokhale was hearing petitions filed by satirist Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines who had challenged rule 3(i)(II)(A) and (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023.

The petitioners have claimed that the amended IT Rules cast an obligation upon intermediaries (social media platforms) to make “reasonable efforts to cause users to not publish, display, upload or share information in respect of business of the Central government that is identified as fake, false or misleading by such an FCO as the ministry (ministry of electronics and information technology) may specify”.

According to Kamra, the rules infringe the freedom of speech and expression, as the term ‘business’ is broad and vague. The vague term had been used to “create a chilling effect where intermediaries will take down any information flagged by the FCO rather than risk losing safe harbour”, his petition said.

The rules, the satirist further said, made the Central government the sole arbiter of truth in respect of its ‘business’ obliging private parties to impose that version of truth on all users. “This provision, therefore, makes the government the sole gatekeeper of the marketplace of ideas and constitutes a clear breach of Article 19(1)(a) (freedom of speech and expression).”

Responding to these contentions, Mehta said the objective was not to curb free speech, opinion, criticism or satire against the government or even the prime minister but to create a balancing mechanism to tackle a medium that was “uncontrollable and uncontrolled”.

“The government is not trying to proscribe and prohibit any expression of opinion, criticism, or comparative analysis and in fact the government welcomes them, encourages them and learns from them. The IT rules only put a system in place,” the solicitor general said.

The bench, however, said under the rules the government was the sole arbiter of truth without any checks and balances, as there were no guidelines to determine what was fake and misleading. “Who will fact-check the fact checker? We will have to trust the FCO as the final arbiter,” justice Patel said.

When the solicitor general reiterated that the FCU would only check the fake and false facts and not opinion or criticism, the court asked how it could be said that the government’s truth was the final truth.

The bench further said the term ‘government business’ was largely undefined.

To this, Mehta responded that it was a well-demarcated term. “What the executive does is the business of the government; what the prime minister says or does is not the business of the government. He can be criticised.”

The bench, however, insisted that there must be some guidelines in place for better implementation of the rules. “Without guidelines and guardrails this is an unfettered power,” it said and added that while the government was saying that the rules applied only to fake news, the rules, on the face of it, said information and not facts.

The rules, the court said, referred to information that would include data, text, image or sound. “The definition of information is not limited to facts. It does include opinion, criticism and parody.”

Mehta said the term data, as used in the rules, only included fake and false facts and the high court may record his statement. But the bench said it could not do so.

The solicitor general also said that the government was not doubting the intelligence of its citizens. People, he said, could post anything they wanted and criticise the government, but fake, false and misleading facts would not be allowed.

Mehta will continue his argument on Wednesday.