IT Rules 2021 | Right to know truth under Article 19(1)(a) violated if false and untrue news is not prevented: Centre to Bombay High Court

On Monday, the Central government, challenging the provisions of the Information Technology Amendment Act, 2023, informed the Bombay High Court that failure to prevent fake news would violate the fundamental right of the recipient of such news to know true information and not be misled, which is also enshrined in Article 19(1)(a) of the Constitution.

Attorney General Tushar Mehta said the right to know and the right not to be misled are as important as the right to freedom of speech and expression under Article 19(1)(a).

“Unless you exercise your right to speech and expression in a way that allows you to convey the truth, and unless you are prevented from conveying completely false and misleading information, the recipient’s right under Article 19(1)(a) will be violated”, Mehta introduced.

Mehta argued that the state has a constitutional obligation to protect the right of citizens not to be misled.

“Another man’s right to a reputation, another man’s right to know the truth, another man’s right not to be misled by false or untrue news… It is my (the government’s) constitutional duty to ensure that the recipient also enjoys his right not to be misled, his right to receive truthful information, and I will have to find a balance between these two conflicting fundamental rights..”

Tie-break judge Judge A.S. Chandurkar It was dealing with petitions filed by comedian Kunal Kamra and others challenging Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Code of Ethics in Digital Media) Rules, 2021.

The Information Technology Amendment Act, 2023 authorises the government to establish an FCU to identify false, inaccurate and misleading information about its activities on social media.

The petitioners concluded their argument in April of this year, claiming that the FCU’s goal is to impose total state censorship on anything the government does not want people to know, discuss, debate, or question. The petitioners also pointed out that there is no law that allows the government’s fact-checking unit (FCU) to carry out its alleged intention to inform citizens.

Today, Solicitor General Mehta began his arguments by stating that the objects of the impugned provisions could potentially be achieved under Section 69A of the Information Technology Act, which deals with blocking public access to information. However, he noted that the use of Section 69A could be disproportionate and unduly harsh.

Mehta said that if the FCU finds the content to be false and the intermediary refuses to remove it or add a disclaimer, the only consequence is that the aggrieved party can sue the intermediary. In such a scenario, the intermediary would have the defense that the content is not false. Mehta maintained that the government is not the final arbiter of truth in these matters.

Referring to the concept of fact-checking, he said the government would simply label content as false, fake or misleading based on its data, and it would be up to social media intermediaries to decide whether to act on that information.

Mehta also mentioned that the intermediaries were consulted while framing these rules. He emphasised that the intermediaries did not challenge the impugned rules and submitted that only the intermediaries can be said to be aggrieved by the impugned rules as there is a possibility of loss of safe harbour.

He said the author of the post could not be aggrieved by the impugned amendment. The author of the post would not be better or worse off because of the provisions because he never had any protection that he could have obtained, Mehta argued.

Mehta defended the laws, saying they were a response to outrage from victims of fake news. He said the challenged laws were aimed at protecting society by preventing the spread of fake news, which could constitute a crime.

He distinguished between the impact of fake news on private individuals and on government, arguing that fake government news should be viewed from a different perspective because of its potential impact on public policy.

Responding to the arguments raised by the petitioners regarding the crippling effect of the impugned provisions on freedom of speech, Mehta said there should be a crippling effect on false and untrue information.

“The only argument they give is that it will have a chilling effect (on freedom of speech and expression). A chilling effect cannot be the basis for posting false or fake news. If it is a chilling effect, then it should be a chilling effect. In a medium of this kind, with such breadth and scope, where it reaches every corner of the world in a matter of seconds, you cannot post false or fake news.”, Mehta claimed.

The court will continue hearing the case tomorrow at 2:30 p.m.

Background –

Under the contested provision, social media platforms are required to make every effort to prevent users from posting information that is “determined to be false, fraudulent or misleading in relation to any activity of the Central Government” by a fact-checking unit within the government.

According to Kamra’s petition, he is a political satirist who uses social media platforms to share his content, and the Rules could lead to the arbitrary blocking or removal of his content, as well as the suspension or deactivation of his social media accounts.

Supreme Court Justice DK Upadhyaya assigned the case to Justice AS Chandurkar after a division bench comprising Justices Gautam Patel and Neela Gokhale delivered a divided verdict in the writ petitions challenging the amendment. While Justice Patel held that the Rule should be set aside in its entirety, Justice Gokhale held that the Rule was intra vires. The judgments were divergent on all counts.

Last month, the Supreme Court stayed the Union’s notification of the Fact Verification Unit (FCU) under The Information Technology (Intermediary Guidelines and Digital Media Code of Ethics) Amendment Rules 2023 (Information Technology (Intermediary) Amendment Rules 2023)The stay is in force till the Bombay High Court finally decides on the issues related to the IT Amendment Rules, 2023.

The Supreme Court set aside the March 11 order of the Bombay High Court refusing to grant stay to the operation of the Rules and the consequential order permitting the Centre to issue notice to the FCU.

Case Title – Kunal Kamra vs Union of India