“Once the government fact-checking unit classifies something as fake, false or misleading, the intermediary then must take a call to take it down or [keep it up and] have a disclaimer. If it does not take it down, it risks a safe harbour loss and court proceedings,” argued Advocate Gautam Bhatia yesterday, while appearing in the Association of Indian Magazines’ Bombay High Court challenge against the government’s plans to give a state-appointed unit powers to flag government-related information online as fake, false, or misleading. “In effect, this is a complete answer to this case, because the impugned [fact check] amendment does precisely what [the Supreme Court’s judgment in] Shreya Singhal said it could not do, which is, make the intermediary judge whether or not a content should be taken down or not, if it breaches the law or not,” Bhatia observed. The fact check amendment was introduced this year to India’s platform regulation rules, the IT Rules, 2021. Multiple petitioners challenging its constitutionality allege that intermediaries, or platforms, will lose safe harbour or protection from liability for third-party content for failing to take down the flagged ‘fake, false or misleading’ information. Safe harbour is held under Section 79 of the IT Act, 2000. Petitioners add that the provision may stifle free speech online by arbitrarily flagging government-related content as ‘fake, false, or misleading’. The government has since promised to stay the law’s notification until October 3rd. “Safe harbour, as a principle, arose for two reasons,” said Bhatia, furthering his argument. “One, of…
