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Bombay HC to Pronounce Judgment on Fact Check Amendment on December 1st, Stay on Notification to Continue Until Then

This week saw the government arguing that the fact check unit’s notice is merely advisory while the intermediaries argued that they would only have an “illusory” choice to keep the content up under the amendment.

The Bombay High Court will pronounce its ruling on the Indian government’s controversial fact check amendment on December 1st, ordered Justices G.S. Patel and Neela Gokhale this afternoon, bringing to an end weeks of arguments on censorship and free speech on the Internet. The Indian government’s stay on notifying the provision will continue until the judgment is delivered.

Stay tuned for MediaNama’s detailed post on today’s arguments.

This amendment to the IT Rules, 2021, empowers the government to appoint a unit to fact check government-related information online, and flag it as false, fake, or misleading. Multiple petitions filed before the Bombay High Court challenged the rules on free speech grounds, arguing that the provision would enable government-led censorship online. As the petitioners put it, the provision empowers the government to be the “prosecutor, the judge, and in that loose sense, the executioner” of what constitutes the ‘truth’ online.

While defending the provision this week, Solicitor General Tushar Mehta argued that the unit will only notify intermediaries (or platforms) that the content they’re hosting is fake, false, or misleading. Intermediaries can choose to take it down, or leave it up with a disclaimer. Should a user be aggrieved by the intermediary’s decision they can move the courts, who will be the final arbiters on the matter. Mehta underlined that the fact check unit’s notice is merely advisory.

Appearing for the Association of Indian Magazines, advocate Gautam Bhatia argued on Wednesday that intermediaries only have an “illusory” choice to keep the content up—because, according to the government’s submissions, doing so would imply that they’ve lost their safe harbour protections under India’s IT laws. Safe harbour, held under Section 79 of the IT Act, 2000, shields platforms from being liable to the third-party content they host, provided they comply with Indian laws like the IT Rules, 2021. Bhatia added that the threat of losing safe harbour can cause platforms to self-censor (in this case, that would mean taking down flagged content), which may cause “chilling effects on free speech” online.

Keeping up with the case: We’ve reported extensively on the fact check amendment, the challenges to it, and the in-court proceedings. Here’s our list of top reads:

  • April 2023: Our breakdown of the government’s plans to fact-check government-related information online. [Read]
  • April 2023: The amendment faces its first legal challenge with political satirist Kunal Kamra’s Bombay High Court petition. [Read]
  • June 2023: The IT Ministry informs the Bombay High Court that the amendment won’t go into force before July 5th, 2023. [Read] In June, the IT Ministry extends the stay until July 10th. [Read]
  • June 2023: The Association of Indian Magazines files its challenge against the amendment at the Bombay High Court. [Read]
  • June 2023: The Editors Guild of India files its challenge against the amendment at the Bombay High Court. [Read]
  • June 2023: Government defends fact check amendment in affidavit filed before Bombay High Court, says fake speech adversely impacts society and requires regulation. [Read]
  • The hearings:
    • July 2023: Senior Advocate Navroz Seervai appearing for Kunal Kamra questions the government’s ‘nanny state’ approach to dealing with misinformation. [Read]
    • July 2023: Justice G.S. Patel raises questions on the authority being conferred to the fact check unit. [Read]
    • July 2023: Justice G.S. Patel asks whether the offline printed versions of online information will also be censored. [Read]
    • July 2023: Petitioners critique the lack of definitions in the amendment, including of ‘fake’, ‘false’, ‘misleading’, and ‘business of the Central government’. [Read]
    • July 2023: Petitioners argue that the fact check amendment violates proportionality tests, which measure infringements on fundamental rights like free speech. [Read]
    • July 2023: Petitioners critique the multiple free speech concerns raised by the fact check amendment, including on dissent, journalism, and more. [Read]
    • September 2023: Solicitor General Tushar Mehta opens the government’s defence of the provision, argues that it is ultimately the courts who decide on the validity of an intermediary’s decision on a fact check notice. [Read]
    • September 2023: Petitioners respond to Mehta’s defence, arguing that it implies that choosing to keep up content will lead to loss of safe harbour. [Read]

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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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