2-judge bench divided over IT rules on fake news, 3rd judge to hear matter

In a split judgment on petitions challenging the amended Information Technology (IT) rules on fake news, one judge of the Bombay high court on Wednesday held that they amounted to censorship, while the other judge said the rules do not have any chilling effect on free speech.

A division bench of Justices Gautam Patel and Neela Gokhale delivered different judgments, necessitating the placing of the petitions before a third judge.  Patel struck down the rules in question, terming them as unconstitutional, while Gokhale dismissed the petitions.

The matter would be put before the chief justice of the HC to be assigned to a third judge, the division bench said.

"There is a disagreement between us. I have held for the petitions and Justice Gokhale has held for the government. So now the matter will be heard afresh by a third judge," Justice Patel said.

Solicitor General Tushar Mehta agreed to extend for 10 days an earlier assurance that until the judgment was delivered, the government would not notify the Fact Checking Unit (FCU) to be set up under the rules to flag fake news about the government on social media.

Under the rules, if the FCU comes across or is informed about any posts pertaining to the business of the government that are fake, false, and contain misleading facts, then it would flag off the same to social media intermediaries.

The intermediary has the option of either taking down the post or putting a disclaimer on it. In the second option, the intermediary loses its safe harbour/ immunity and stands liable for legal action.

Patel held that no fundamental right says that every citizen has to receive only "true and accurate information as determined by the government".

Gokhale, on the other hand, held the right to share fake or untrue information was not part of the free speech right.

"Right of speech will not enjoy protection if the user knowingly and intentionally shares fake or misleading information, flagged albeit by a FCU...," she said.

Patel noted that the FCU would be "the sole authority to decide what piece of user-content relating to the undefined and unknowable business of the government is or is not fake."

"How the FCU will go about its business is also unknown....Who, after all, is to fact-check the fact checker?...Quis custodiet ipsos custodes (who will guard the guards)?" he asked.

"It is not the business of the government to keep citizens from falling into error. It is other way around... it is very much the business and should be the duty of every citizen to prevent the government from falling into error," he said, adding that every attempt to whittle down a fundamental right must be resisted.

Justice Gokhale held that the rules were not violative of any fundamental rights, nor did they suffer from arbitrariness.

The rules, in fact, encourage discussion and dissemination of information on facts bereft of fakery, she said.

"No content is restrained by the impugned rules, unless the content is patently false, untrue and is communicated with actual malice that is with knowledge of its falsehood and with reckless disregard for the truth and is deceptively passed off as a statement of truth," she said.

"The right to free expression is a crucial and indispensable component of a nation having adopted democracy. However, this right does not permit freedom to share information which a person knows to be false yet intentionally communicates as authentic," Gokhale said.

Justice Patel held that the State cannot coercively classify speech as true or false and compel non-publication of the latter, as this was nothing but "censorship".

He had the greatest difficulty in accepting the proposition that the government has an overriding authority to arrive at an absolutist determination of a content or expression as the truth, the judge said.

"There are no guidelines, no procedure for hearing, no opportunity to counter the case that some information is fake, false or misleading.... the rules clearly make the central government a judge in its own cause.

Gokhale, however, noted that the rules provide an opportunity to the intermediary to put a disclaimer on the content, and the FCU was merely tasked with identifying information concerning any business related to the government.

"The rules does not in any manner, confer any authority on the FCU to direct the intermediary to take down any such information. It is left entirely to the discretion of the intermediary to make reasonable effort so that the user is encouraged not to continue to post, share etc. such information," she said.

She further said there was also a redressal mechanism for the intermediary as well as the user, and ultimately it is the court of law which would be the final arbiter. FCU cannot be presumed to be biased only because the power to notify is vested in the government, she added.

Members of the FCU would be those who are privy to the business or policies of the government, having access to authentic information to authoritatively determine any information as fake, and hence the FCU cannot be termed as biased, Justice Gokhale said.

Patel noted that one fully government-controlled entity, Press Information Bureau, is active and already has significant social media presence.

"The sinister and insidious facet to the impugned amendment is that this new agency (FCU) has far more than a loud bark: it has fangs and claws, for its unilateral view of what is or is not the 'truth' is accompanied by a requirement of removal of what is has so determined (to be fake, false or misleading)," he said.

Stand-up comedian Kunal Kamra, the Editors Guild of India, and Association of Indian Magazines filed petitions in the HC against the rules, terming them arbitrary and unconstitutional and claiming that they would have a chilling effect on the fundamental rights of citizens.

On April 6, 2023, the Union government promulgated amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, including a provision for a fact-checking unit.