Bombay HC seeks Centre's response on Kunal Kamra's challenge to IT rule changes

Bombay High Court on Tuesday has sought Centre's affidavit on plea challenging Information Technology Rules amendment to identify fake news on social media. The ruling comes in response to a petition filed by stand-up comic and political satirist Kunal Kamra.

While directing the Centre to file its affidavit by April 19, the bench of Justices Gautam Patel and Neela Gokhale on Tuesday asked, “Was there any factual background or reasoning that necessitated this amendment? The petitioner (Kamra) is anticipating some kind of impact due to this amendment."

Kamra in the petition has sought the court to declare the Rules as unconstitutional and a direction to the government to restrain from taking action against any individual under the Rules.

On April 6, the Union government promulgated certain amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Under the amendment, the government added a provision of a fact-check unit to identify fake or false or misleading online content related to the government.

Against such content identified by this unit, intermediaries, such as social media companies, will have to act or risk losing their “safe harbour” protections in Section 79 of the IT Act, which allows intermediaries to avoid liabilities for what third parties post on their websites.

The rules dictate that social media platforms "make reasonable efforts" to not "publish, share or host" any information relating to the government that is identified as "fake, false or misleading" by a government appointed fact-checking unit.

This amendment was challenged in a petition filed on Monday by Kamra who termed it as violative of the fundamental rights of citizens of this country.

"There may be many interpretations of a certain thing or statement but that doesn't make it false or fake," Justice GS Patel said during the hearing.

Kamra’s counsel Navroz Seervai submitted to the court that the amended rule would have a “chilling effect” on the freedom of speech and expression of all the citizens of this country especially those who post comments and videos on political developments as a profession. “This amendment is against the interest of public at large but only in the interest of the government, ministers, and others in power. The amendment has no provision for a hearing or appeal. This is against the principles of natural justice,” Seervai argued.

While pointing to the urgency in hearing the plea, Seervai said that the amendment "makes government the prosecutor, judge, executor, everything."

In his petition, Kamra said that the amendments "constitute unreasonable restrictions to freedom of speech and expression".

He further stated that the move would lead to an "unreasonable restriction" on his "fundamental right to practice trade or profession" since he relies on social media platforms to share his content.

The amendments could lead to his content being "arbitrarily blocked" or taken down, or his accounts being suspended or deactivated, Kamra stated.

Kamra, in his petition, said the rules require social media intermediaries to censor or modify content that relates to the Central government, if the government-mandated fact-checking body directs them to do so.

“The Rules are manifestly arbitrary, as they entail the central government acting as a judge and prosecutor in its own cause, thus violating one of the most fundamental principles of natural justice,” the petition said.

Additional Solicitor General Anil Singh, appearing for the Union government, sought time to file an affidavit as the petition challenges the validity of the rule. He said that no interim relief could be granted without a reply being filed by them and a detailed hearing.

(With inputs from Vidya)

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