Free Speech vs. Misinformation: Bombay High Court Strikes Down Controversial IT Amendment Rules

Introduction

On 25 September 2024, the reference bench of the Bombay High Court in Kunal Kamra v. Union of India and connected petitions ruled upon the amendment carried out on 06 April 2023 (“Amendment”) (please click here) to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) (please click here). The High Court held that the Amendment is unconstitutional and violative of the Information Technology Act, 2000 (“IT Act”). In this article, we discuss the decision of the High Court and our views on it.

Brief Facts

On 06 April 2023, the Ministry of Electronics and Information Technology introduced the Amendment requiring social media platforms (like Facebook, Twitter, etc.) to remove any news related to the “business of the Central Government” that is identified as “fake, false, or misleading” by a fact-checking unit established by the Central Government.

The Amendment was subsequently challenged before a division bench of the Bombay High Court by a political satirist and certain news report agencies on the ground that the establishment of a fact-check unit conflicts with the safe harbor provisions of the IT Act. These provisions shield social media intermediaries from their liability for user-generated content. It was argued before the High Court that social media intermediaries risk losing their safe harbor protection if they fail to comply with the IT Rules, and such immunity is crucial for preserving the independence of the digital press in India. Furthermore, the petitioners claimed that the Amendment violates fundamental rights under the Constitution of India as they conflict with principles of natural justice, restrict freedom of speech, and limit the right to carry out one’s profession.

In January 2024, the Bombay High Court issued a split verdict on the Amendment. One judge was of the view that the Amendment should be invalidated, highlighting that it grants the Central Government’s fact-check unit the exclusive authority to determine the accuracy of news or information. However, the other judge had a differing view, concluding that social media intermediaries would retain their safe harbor protections. She emphasized that it was unfair to assume bias from the fact-check unit simply because it was appointed by the Central Government and described the legal challenge as “premature,” as it was based on the fear of potential misuse.

The case was then referred to a third, deciding judge, who ultimately struck down the Amendment, stating that it restricted both freedom of speech and the right to carry out one’s profession. Meanwhile, the Supreme Court stayed the appointment of fact check units by the Central Government under the Rules.

Ruling of the Reference Judge

The reference judge struck down the Amendment on the following grounds:

1. The terms ‘fake’, ‘false’, ‘misleading’ and ‘business of the Central Government’ have neither been defined under the IT Act nor the IT Rules, which renders the Amendment to be vague and wide. It is necessary that these expressions are either defined or explained and the interpretation should not be left at the discretion of fact checking units. The third judge cautioned that such powers had the potential of creating a ‘chilling effect’, which means that the citizens have a threat while exercising their fundamental right of speech and expression in view of the restrictions imposed on them.
2. The fact checking units constituted by the Central Government are required to decide upon whether an information is fake, false or misleading with respect to its own business thereby making it a judge in its own cause. Further, the Amendment does not provide for any opportunity of hearing before identification of the information and requirement for a reasoned order by the fact checking units. Therefore, it was held to be violative of the principles of natural justice.
3. The restriction on the fundamental right to freedom of speech and expression under the Constitution is subject to specific exceptions outlined in the Constitution. However, the Amendment seeks to restrict this right on the basis that every citizen receives ‘true’ and ‘accurate’ information as defined by the Central Government – a restriction which does not qualify as a reasonable restriction. Therefore, the Amendment violates the fundamental right to freedom of speech and expression.
4. The Amendment only applies to the information published on digital media and not to the information available in print media. This distinction is detrimental for the organizations having an online presence as the same information would not be subject to the rigors of the Amendment if published by the print media. Therefore, the Amendment is violative of the fundamental right to carry on business under the Constitution.
5. The Amendment must satisfy the test of proportionality as laid down by the Supreme Court to assess the infringement of fundamental rights under the Constitution. The test lays down that for a particular law to be constitutional it must be in pursuance of a legitimate aim of the government, it must help the government in achieving the aim, the restrictions it imposes must be necessary and not excessive and it should provide for adequate safeguards against infringement of the fundamental rights. However, as the Amendment does not satisfy the test, it was held to be unconstitutional.

Our Thoughts

The Bombay High Court’s ruling highlights the need to balance protection of the right to free speech with addressing the challenge of misinformation in today’s digital world, where information spreads rapidly. The judgment is meant to ensure that the Central Government does not overstep its bounds in combating false information in ways that could infringe on individuals’ constitutional rights. While it’s reasonable for government bodies to counter misinformation, especially on matters of national security, extending this power to include decisions about political information raises concerns. Independent, credible media organizations are best suited to handle these issues, as a government—driven by its political interests—might misuse these powers to control the narrative for its own advantage. Although the Amendment was aimed to prevent the spread of fake news, it lacked clear guidelines and safeguards, leading to its rejection by the Bombay High Court.

However, this may not be the final word on the fact-check unit’s legality. The Central Government is likely to appeal the decision in the Supreme Court. Additionally, it would be interesting to see how the Bombay High Court’s judgment striking down the Amendment will impact the constitutionality of fact check units constituted by certain states such as Karnataka and Tamil Nadu.

The information contained in this document is not legal advice or legal opinion. The contents recorded in the said document are for informational purposes only and should not be used for commercial purposes. Acuity Law LLP disclaims all liability to any person for any loss or damage caused by errors or omissions, whether arising from negligence, accident, or any other cause.