The fact-check amendment to the IT Rules, 2021, faces its first legal challenge from political satirist Kunal Kamra, who has filed a petition at the Bombay High Court asking the court to declare the amendment unconstitutional, the Internet Freedom Foundation (IFF), which is assisting Kamra in his challenge, said on April 11.
The fact-check amendment, which is part of the IT Amendment Rules, 2023, notified last week by India’s IT Ministry, requires any government-related content that is fact-checked as false or fake, or misleading by the government’s fact-check unit to be taken down by all intermediaries, including social media platforms. Failure to do so could result in the intermediary losing safe harbor provisions.
A bench of the Bombay High Court comprising Justice Gautam Patel and Justice Neela Gokhale has given the IT Ministry one week to file its response on why the amendment should not be stayed and to also describe the “factual background that necessitated the issuance of the amendments,” IFF reported.
The next hearing is scheduled on April 21.
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Why does this matter (Nikhil adds): The fact-check amendment is a serious threat to freedom of speech and expression as it gives the Indian government excessive power to censor on social media any news that is critical of the government. Let’s not forget that the first of the IT Rules amendments in 2020 also brought digital news organizations under the ambit of the IT Act, giving the Ministry of Information and Broadcasting the power to regulate them. Along with that, the government also expanded the scope of Section 69A, its secretive blocking powers, to digital news organizations. Multiple news organizations went to court to challenge those rules and got a stay order. Effectively, this fact-checking amendment has the same impact of censorship (because social media brings reach to news), without directly censoring a news website.
In addition, one factor to consider is the impact on privacy: will WhatsApp, as an intermediary, have to break end-to-end encryption to censor certain links on the platform?
Is to fact check the government, and call truth to power. Giving the government the power to fact check its fact checkers and censor their content shift the balance of power. It makes the government a censor board for news, which restricts the freedom of the press.
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2/— Nikhil Pahwa (@nixxin) April 7, 2023
What are the grounds on which the amendment has been challenged?
1. Beyond the scope of the IT Act, 2000: The amendment is ultra vires Section 79 (safe harbor provision) of the parent Act, the Information Technology Act, 2000, because “it authorizes the deprivation of safe harbor for intermediaries on grounds that go beyond Article 19(2), and contrary to the judgment in Shreya Singhal.” Fake or false or misleading content is not a ground enumerated in Article 19(2) or Section 69A of the IT Act, 2000, IFF added in its report.
2. Violates the right to freedom of speech and expression under Article 19(1)(a): The amendment violates the freedom of speech and expression guaranteed under Article 19(1)(a) and does not satisfy the ‘reasonable restrictions’ criteria under Article 19(2).
Particularly, the fact that the government can fact-check any news “in respect of any business of the Central Government” is “unconstitutionally overbroad and vague” the petition argues. It “is a boundless and boundlessly manipulable term, which can encompass almost any aspect of modern life under a welfare State.” This could result in self-censorship in order to stay clear of the law, thus stifling even lawful speech. The terms “fake or false or misleading” and “reasonable efforts” also remain broad and vague, IFF added.
Furthermore, the amendment makes the government “the sole arbiter of truth ‘in respect of any business’ related to itself, and obliging private parties (social media intermediaries) to impose that version of the truth upon all users of the said intermediary. This provision, therefore, makes the government the sole gatekeeper of the marketplace of ideas, and constitutes a clear breach of Article 19(1)(a).”
The amendment also doesn’t satisfy the exemptions to free speech under Article 19(2) as “fake or false or misleading” content does not fall under any of the eight categories laid out. “It is well settled that in order to restrict speech, no grounds outside Article 19(2) could be imported into its text,” the petition states. And even if it does fall under 19(2) it fails the test of proportionality because there are several less restrictive alternatives for the government to achieve its purpose such as issuing a clarification to “fake” news, etc.
3. Violates the right to practice one’s trade and profession under Article 19(1)(g): “The Petitioner, as a political satirist, necessarily engages in commentary about the actions of the Central Government and its personnel. The Petitioner relies on the wide reach of the internet, through social media platforms, to share his work. The Petitioner’s ability to engage in political satire would be unreasonably and excessively curtailed if his content were to be subjected to a manifestly arbitrary, subjective ‘fact check’ by a hand-picked unit designated by the Central Government,” the petition argues. The amendment could result in political satirists self-censoring out of fear of legal action and could also result in their social accounts getting suspended or deactivated by platforms, which, again, would unreasonably restrict their constitutionally guaranteed the right to practice their profession as social media is the primary medium through which they share their art.
4. Violates equality before the law under Article 14: The amendment makes the government “a prosecutor and judge in its own cause,” which is “manifestly arbitrary, inimical to the rule of law, a violation of one of the most fundamental principles of natural justice and will naturally create a situation where material critical of the government will be particularly vulnerable to being flagged.”
Additionally, only one entity, the central government, has this power, not even any state or local government, which is “the very definition of class legislation – with the central government constituting the privileged class – which Article 14 is bound to prohibit.”
The amendment also fails to offer the user any opportunity to be heard before their content is flagged as “fake, false, or misleading.”
The amendment also directly encroaches “on the role conferred exclusively on the courts: to be the arbiter in disputes, including between the State and its citizens, and the determination of facts in respect of such disputes.”
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