The Centre’s move to create a ‘fact-checking unit’ empowered to order the removal of ‘fake or false or misleading’ information from digital and social media platforms was never likely to succeed. Justice A.S. Chandurkar of the Bombay High Court struck down the amended rule, in a tie-breaking ruling after a two-judge Bench, in January, was split over its constitutional validity. In an opinion that makes it a 2:1 decision, he agreed with the view of Justice G.S. Patel, who had held that the provision violated the right to freedom of expression and sought to coercively classify speech as true or false based on vague and undefined terms. The rule, introduced as an amendment in 2023 to the rules governing information technology intermediaries and digital media ethics, meant that once the fact-checking unit flagged a piece of information on a social media platform as fake, false or misleading, the platform was bound to take it down. Failure to do so would result in its losing its ‘safe harbour’ protection, or exemption from legal action for third party content hosted on a platform. Editors and publishers rightly saw the creation of a fact-checking unit in the Press Information Bureau as a mechanism by which the Centre could censor anything that it disputes. Political satirists will be forced into self-censorship, argued comedian Kunal Kamra. The government contended that recklessly published material that was contrary to truth cannot have constitutional protection and that aggrieved platforms were free to approach the courts for remedy.
However, two of the three judges have found the rule unconstitutional, noting that the terms ‘fake’, ‘false’ or ‘misleading’ were not defined and there was no scope for redress provided in the rules. Another point that went against the government was that the restriction was applied only to information about the Centre, and not other kinds of information. Justice Chandurkar also agreed with Justice Patel that a restriction on free speech based on whether something is true or false was not one of the circumstances listed in Article 19(2) of the Constitution for imposing reasonable restrictions. The other judge on the Bench, Justice Neela Gokhale, had upheld the rule, holding that it was not vaguely worded and that there was no bar on a platform publishing a disclaimer to retain its safe harbour protection. She also rejected the idea that such a rule would have a chilling effect on free speech. The prevalence of misinformation or false information is a problem that undoubtedly requires to be tackled, but it cannot be an excuse to create a mechanism by which the government becomes a judge in its own cause or the sole arbiter of what information about itself is misleading.
Published – September 23, 2024 12:20 am IST
