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We Are Not Concerned By the Identity of the Fact-Check Unit, Rather the Authority Being Conferred On It: Bombay HC

“It [the fact-check amendment] assumes that some delegated unit has not only the wherewithal but a constitutional power to so pronounce [the truth]. What is the source of this power?” Justice Patel observed

“We are not concerned with the identity of the fact check unit or there is a fact check unit,” said Justice G.S. Patel in Kunal Kamra’s challenge against the government giving itself powers to fact-check ‘fake, false, or misleading’ online information on government ‘business’ at the Bombay High Court on Friday. “We are concerned about the authority being conferred on that fact check unit…Now look at this. We don’t know what is the business of government. It could be anything or nothing on a sliding scale from zero to infinity…”

Kamra was the first to challenge the controversial provision back in April, after which the IT Ministry stayed the notification of the provision until July 10th. Today’s hearings saw the government extend the stay until July 14th. The case will be heard next on July 13th.

Seervai elaborates on the government’s definition of ‘business’: Expanding on the government’s affidavit filed in the challenge, Advocate Navroz Seervai, appearing for Kamra, noted that the government “purport[s] to say that it [business is] covered by Articles 77 and 78 of the Constitution [respectively dealing with the Indian government’s business, and the Prime Minister’s duty to provide information to the President]. That’s all [in their affidavit]…That [is what] means business and that’s absolutely crystal clear and precise. [They are] Almost suggesting that if you don’t understand, we can’t be blamed for your lack of understanding.”

Seervai added that Article 366 of the Constitution, which lays out definitions for various terms, doesn’t even define the term government, let alone the term government business.

Article continues below. You might also want to read: Kunal Kamra Challenges IT Rules Fact-Check Amendment In Bombay High Court

What does ‘fake, false, or misleading’ information actually mean?: “Fake, [is an] extremely problematic expression in itself,” Justice Patel observed. “False, at least is taking us to a level where one might argue that this is demonstrably or irrefutably false. False, puts us in a binary [between true and false], fake doesn’t even attempt the binary. Misleading is a seriously problematic area because it is opinion.”

“The three words…fake, false, and misleading are all of a slightly different colour,” Justice Patel observed. “Each of them is independently and collectively uncanalised, unqualified, unrestricted…What are the boundaries of these three words or the word business [in terms of fact-checking government business]? Is it permissible in law for a statute to have unbounded discretion and authority like this?”

What if the rule simply said that platforms need to carry gov counter views—would that be a problem too?: Addressing Seervai, Justice Patel said “Let’s assume that for any item any nugget of data, the PIB believes that a counter view from the government is necessary. If this rule says that an intermediary is required to also prominently carry such information that the PIB requires it to carry in regard to any item, would you have an objection? Because I’m going to the least intrusive aspect of this [as opposed to instead taking down misinformation].”

Starting off with a cautious reply (“I don’t want to give an off-the-cuff reply…I need to apply my mind”), Seervai went on to say, “by and large the whole rationale for the existence of an intermediary is that it hosts all views and counterviews. It doesn’t censor anything except those that it requires, [like] pornography, crime, violence…So therefore, even without an amendment forcing them [platforms] to [carry a government justification], if the PIB wanted to post something on an intermediary platform setting right what somebody has said, nobody would prevent it.”

Justice Patel then asked Seervai whether the government had justified opting for a more intrusive method of linking the fact-check amendment to the loss of safe harbour in its affidavit. “What they say is…that the evil of fake news and its virality and the speed with which it spreads requires us to protect ourselves, basically government, by introducing this rule,” Seervai replied.

The Indian scenario is unique because the fact-check unit ‘determines’ truth: “In citing Alvarez [a free speech case from the United States] you are inconsistent with your argument,” observed Justice Patel after hearing Advocate Seervai’s submissions on how some courts observed that even falsehoods are protected under free speech laws in the United States. “You have taken this to one polarity, namely, that even a statement [that is] demonstrated or accepted to be false is protected under the free speech guarantee. Now, we are at a bit of a remove from this [in India]…because if you look at the rule, it does not limit itself to material that is accepted to be false. It is yet to be determined whether it is false or not. And the power of that determination is being conferred by this amendment on an invention…Now, nobody knows when a statement is made whether it is true or false. It is the fact-checking unit which will arrive at some sort of a determination.”

“I have several problems with this straightaway,” Justice Patel continued. “I’m not even sure if you look at the evidence that whether a court…can clearly say that this [any piece of information] is false. It may say this is not credible, cannot be believed or this is not proof…It [the fact-check amendment] assumes that some delegated unit has not only the wherewithal but a constitutional power to so pronounce [the truth]. What is the source of this power?”

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I'm interested in stories that explore how countries use the law to govern technology—and what this tells us about how they perceive tech and its impacts on society. To chat, for feedback, or to leave a tip: aarathi@medianama.com

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