Can't bring 'hammer to kill an ant': Bombay HC says on Centre's 'excessive' IT rules to curb fake news

The court emphasised the need to avoid using disproportionate measures. Justices Gautam Patel and Neela Gokhale, presiding over a division bench, questioned the necessity of amending the IT Rules and voiced their difficulty in comprehending why one government authority has been granted absolute power to determine what constitutes fake, false, or misleading content.

According to the court, in a democratic process, both the government and citizens have the right to participate, with citizens having the fundamental right to question and demand answers from the government, to which the government is obligated to respond.

“In a democratic process, the essence of which is discourse, government itself is a participant. It is not repository of truth that cannot be questioned. Forget the fundamental right to lie, it is the citizens right to doubt, question the government and it has to answer. This power here (of FCU), it's very difficult," Justice Patel said, per a report by Live Law.

The court also questioned who would fact-check the Fact Checking Unit (FCU) established under the amended rules, expressing concern that the FCU's statements may be treated as indisputable truth.

“The player is becoming the umpire,” Senior Advocate Arvind Datar said, referring to the court’s remark, as per the Live Law report. Datar appeared on behalf of the New Broadcast and Digital Association, which embodies 27 TV companies and 105 channels.

The court also raised concerns about the criteria set in the IT Rules that define fake, false, and misleading information, questioning where the boundary lies.

In the same Live Law report, Justice Patel expressed frustration, stating, "I am struggling because I don't know what the boundary is. I have gone through the Centre's affidavit twice and I could not find out what the boundary is."

The bench was hearing multiple petitions filed against the amended IT Rules, including those by stand-up comedian Kunal Kamra, the Editors Guild of India, and the Association of Indian Magazines. These petitions argue that the rules are arbitrary, unconstitutional, and pose a threat to citizens' fundamental rights.

Advocate Gautam Bhatia, representing the Association of Indian Magazines, presented arguments against the rules, suggesting that there are less restrictive alternatives available to combat fake content on social media.

Datar also took the example of the ongoing Manipur riots, proposing that the Fact Checking Unit, established under the rules, could curb any translated news being reported in regional languages.

“Suppose something happens in Manipur, which is reported in regional language. The translated news put in social media will have higher reach. FCU can say that it is untrue…FCU can block the investigative reports choking the participatory democracy,” Live Law reported Datar saying.

The court acknowledged the need for fact-checking, stating that someone must verify the accuracy of social media content to some extent. However, alongside the issue of excessiveness, the court expressed confusion over the motive behind amending the IT Rules.

"What is the concern that necessitates this amendment? What is the anxiety behind it? I still do not know," Justice Patel said as per a PTI report.

The bench emphasised that citizens are not claiming a fundamental right to lie but rather asserting their right to defend the accuracy of their statements. The court also highlighted that on the internet, individuals can assume various identities, noting that not all impersonations necessarily occur.

Additionally, the rules failed to define the boundaries of what qualifies as fake, false, and misleading, the court observed.

According to the PTI report, the court referenced the Citizenship Act drawing attention to the implications of the rules,

It posed a hypothetical scenario to illustrate its concerns: "If someone writes an opinion that the effect of the provisions of the Act is such and such, then could such an opposing view be ordered to be taken down as fake, false, and misleading? Because the statute comes under government business."

The court also sought clarity on the limits outlined in the rules and questioned whether speculation alone could render information fake, false and misleading.

Furthermore, the court questioned how a government-appointed authority could possess the final authority to determine truth and falsehood. Justice Patel expressed scepticism over the rules granting the Fact Checking Unit absolute power in deciding what is fake and misleading.

"I find it difficult that the rules give the Fact Checking Unit absolute power to decide that this is fake and this is misleading. This is completely binary. According to me, except a court of law, nobody has the authority to pronounce what is true and false. Even a court only says probably this may be the truth and probably this is false," the bench said per Live Law.

The court also noted that the government already possesses the Press Information Bureau (PIB), which regularly counters false or fake content on social media, even without the amendment. The court questioned whether the government's argument implied that, without the amendment, social media intermediaries would act recklessly.

The petitioners' advocates concluded their arguments on Friday, and the court scheduled the next hearing for July 27, during which Solicitor General of India Tushar Mehta will present the Union government's arguments.

The court extended the deadline for notifying the Fact Checking Unit until July 28, as declared in the previous statement by the Union government.

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

The three petitions before the court seek a declaration of the amended rules as unconstitutional and a restraining order against the government from taking action against individuals under these rules.