BOMBAY HC STRIKES DOWN FACT-CHECKING UNIT: JUDICIAL AND SOCIETAL ASPECT

INTRODUCTION:

On 20.09.24 the Bombay High Court struck down, the impugned Rule 3(1)(b)(v) of the Information Technology Rules, 2021 as amended in 2023 which broadened the authority of Press India Bureau’s Fact Checking Unit(FCU) to identify the fake or false or misleading information in respect of any business of the central government, in Kunal Kamra v. UOI.

After the split decision by the bench in January, the case was referred to Justice A.S. Chandurkar for reaching a judgment where he agreed with the view of Justice G.S. Patel that the impugned provision of IT Rules, 2021 was not in accordance with certain constitutional and fundamental rights. The main mandate of concern here was that once the FCU has flagged some content as fake, false or misleading on an online platform then the platform was bound to take it down, otherwise it would lose its “safe harbor” protection.

This Judgment conforms to the larger notion of Freedom of speech and press in the society, facilitating and maintaining the liberty to express oneself. This becomes a necessary judgment, especially when the current scenario of Indian Press and social media is very polarized and unorganized. Media Houses and press person were apprehensive of the impugned rule as it had the authority to curb their opinions, satire or humor over the government’s business which ultimately restricts their freedom of speech and expression in a democratic country.

JUDICIAL INTERPRETATION:

The judgment deals with an array of provisions to determine the constitutionality of the rule, which stated that once a piece of information was flagged as fake, false or misleading by the FCU, the social media platform was bound to take down the information otherwise losing its safe harbor protection, and also provides a comprehensive reasoning for the same. The main question addressed includes the violation of Article 14, 19(1)(a), the chilling effect on freedom of speech and expression, the terms “fake, false and misleading” are vague and the principles of natural justice being hampered.

The impugned rule was held violative of Article 14 of equality as according to it there should be intelligible differentia for discerning citizens amongst each other, however, no reasonable justification could be ascertained to distinguish information of business of central government from other information.

Article 19(1)(a) guarantees the right to freedom of speech and expression, while evaluating its violation by the impugned rule the court noted that there is no “right to truth”. It established that the state was not bound to take care that only true information was disseminated, so the impugned rule which prohibits the spread of “false, fake and misleading” information is not a duty of the state. Also, the restrictions placed under the rule are not in consonance with the “restrictions” laid down in Article 19(2).

The terms “false, fake and misleading” in the rule were considered to be vague and overbroad as no manner was provided for identifying fake, false or misleading information and no guidelines were cultivated that could help navigate such interpretation.

The term “Chilling effect” on freedom of speech usually means that pupil is refraining from expressing themselves due to fear of punishment or implication in laws which restrict such expression and speech to an extent. As the rule has been stayed by the SC, concrete evidences regarding the impact of the effect are unfounded. So, the intensity of the effects’ impacts cannot be gauzed due to lack of evidence, also vagueness and broadness are implied in the rule as there are no guiding principles for the rule. Consequently, it is considered that chilling effect on freedom of speech and expression could be held and interpreted when the totality of the challenge and broadness and vagueness of the term are considered.

Another major aspect that the judgment touched upon was the violation of Principle of Natural Justice. It is a common principle that one cannot be a judge in its own affair, however by authorizing the FCU the government became the final arbiter in its own case by deciding which information was fake, false or misleading, thus disregarding a major principle of Natural Justice.

Judicial findings pertinent in this case are creatively interlinked with each other creating an analysis which comprehends all related aspects including but not limited to equality, freedom of speech and expression, societal effect, interpretation of terms and regard for principle of natural justice. The impugned rule does not properly conforms to all the aspects evaluated, hence falling short to uphold its constitutionality.

IMPACT:

Apart from the judicial aspect, this ruling affects the social aspect as well. A melange of opinions has arisen regarding the motive, validity and consequences of the Fact checking Unit.

The Government has accorded the establishment of the Unit for the purpose of deterring the dissemination of fake news and misinformation and providing people with a platform to report suspicious information. However, the general public especially media perceive this as a step towards dominating the press and controlling the information about government business which reaches the masses through online and digital platforms. The major consequence regarded to such action is the conversion of democratic government to dictatorship or authoritarian rule. People perceive the action as a motive towards increasing unreasonable censorship in the society, which provides the government with total authority over the content from which masses can make out their opinions from. Once opinion regarding a matter is constructed, it becomes increasingly challenging to reformulate it. Thus construction of a positive mindset regarding the government in the eyes of general public through media will ultimately lead to recurrence of the government conforming to indirect dictatorship, which hinders the spirit of our constitution.

CONCLUSION:

The striking down of Fact Checking Unit by the Bombay high Court is a vital decision as it gives regard to the spirit of constitution, social expectations and common principles of natural justice. This pronouncement clearly draws a distinction between reasonable restriction on freedom of press and unreasonable restrictions which promote arbitrariness.

References:

1. Kunal Kamra v. Union Of India(UOI) [2024] MANU MH 5093
2. “Unwarranted curbs: On the Centre’s move on a ‘fact-checking unit’”(The Hindu, September 25, 2024) accessed on 19 October 2024.
3. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (updated as on 6.4.2023)
4. Shashank Reddy, “PIB’s fact-checking unit: Can the Centre decide what is true about itself and what is not?”( The Indian Express, March 21, 2024) accessed on 19 October 2024.