How can FCU decide what is fake, false, misleading, HC asks Centre
A division bench of justice Gautam Patel and justice Neela Gokhale was hearing a petition filed by satirist Kunal Kamra who had challenged the amended Information Technology (IT) Rules which enabled the Central government to constitute a fact checking unit (FCU) to identify fake or misleading posts on social media and direct intermediaries like Facebook and Twitter to take those down
MUMBAI: The Bombay high court on Friday questioned the Central government as to what procedure it would adopt to decide whether news or editorials published online were fake or misleading in the event of the said content being critical of the government, as the meaning of false, fake and misleading could have different interpretations.
A division bench of justice Gautam Patel and justice Neela Gokhale was hearing a petition filed by satirist Kunal Kamra who had challenged the amended Information Technology (IT) Rules which enabled the Central government to constitute a fact checking unit (FCU) to identify fake or misleading posts on social media and direct intermediaries like Facebook and Twitter to take those down.
Editors Guild of India, Association of Indian Magazines, and News Broadcast and Digital Association have also challenged the amendment and their pleas are being heard along with Kamra’s petition.
Senior advocate Navroz Seervai, who represented Kamra, said all posts would not necessarily raise an alarm and spread panic among readers, but the amended IT Rules would have a chilling effect on internet users.
The bench then asked the Central government to clarify the meaning of three words - fake, false and misleading - used in the amended rules and how the FCU would decide on what content fell under the purview of these three words.
“What is the source of the power? I am not sure even a civil court could authoritatively pronounce on truth or falsity. It may be pronounced based on likelihood or probability,” the HC said.
The bench also sought to know whether the FCU would consider online news reports and editorial content that was critical of government decisions and policies as fake or misleading. Citing an instance of news reports on the economy of the nation which would be based on official figures but could be analysed in a particular manner, the bench wanted to know whether such an analysis would also be considered, as fake or misleading, if it was critical (of the government policies) or hard hitting.
“You may find any editorial extremely hard hitting. There could be an editorial on India’s relations with China. What happens to that? We are in the realm of the unknown. We do not know what is going on here,” the bench said.
Seervai cited an instance of a threat that was posted online in a foreign country where a man had claimed that he would blow up a railway station. The threat, however, did not create an alarm, or panic. It was only after a station official stumbled upon the post did it get any attention, he said. He also cited a case of the US court where a false statement made by the defendant was considered protected under the right to freedom of speech.
Thereafter, the bench asked the counsel to explain how an intermediary would lose its safe harbour (legal safety) for non-compliance with the amended rules to which Seervai said rule 7 stipulated that an intermediary would be held liable for punishment for such an offence.
The Centre then informed the bench that it would not notify the setting up of FCU till July 14.
Hearing on the petition will continue on July 13.
Kamra has challenged rule 3(1)(II)(A) and (C) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, stating that this would, in effect, amend rules 3(1)(a) and 3(1)(b)(v) of the IT Rules, 2021, and was in violation of not only Supreme Court judgments but was also contrary to the accepted norms by foreign courts with regards to freedom of speech.