The recently amended Information Technology Rules against fake news on social media give "unfettered power" to a government authority in the absence of "guidelines and guardrails", the Bombay High Court observed on Tuesday, while hearing petitions challenging the rules.
A division bench of Justices Gautam Patel and Neela Gokhale also sought to know what necessitated the amendment and provision for a separate Fact Checking Unit (FCU) when the Press Information Bureau (PIB) is already doing fact-checking on social media.
The bench was hearing a clutch of petitions filed by stand-up comedian Kunal Kamra, the Editors Guild of India, and Association of Indian Magazines against the Rules, terming them arbitrary and unconstitutional and claiming that they would have a chilling effect on the fundamental rights of citizens.
Bombay High Court's observations
The amendment to the IT rules, which was originally notified on April 6, allowed social media companies and other intermediaries to take down content that is deemed fake by a government fact-check unit - a move that was criticised by several press bodies and journalists, as PIB performs the same role.
The court noted that there must be some guidelines in place for the Rules. "Without guidelines and guardrails this is an unfettered power. The funnelling of power to determine what is true to a government authority...," Justice Patel said.
The court further noted that while the government was saying that the Rules apply only to fake news, the Rules, on the face of it, say information and not facts.
"The Rules says any information that would include data, text, image or sound that is fake, false and misleading. The definition of information is not limited to facts. It is expansive to include opinions and criticism. The Rules do not say facts. Data or information can be everything...data is opinion...data is parody also. Therefore, it is not limited to facts," Justice Patel said.
The court also said that the IT Act was "confusing" regarding the meaning of the word `information'.
Centre's response
Solicitor General Tushar Mehta, representing the Union government, said the PIB was "teethless" (sic) and the objective was not to curb free speech, opinion, criticism or satire against the government or even the Prime Minister but to create a balancing mechanism to tackle a medium that was "uncontrollable and uncontrolled".
"The IT Rules are not related to curbing free speech at all. The government is not trying to proscribe and prohibit any expression of opinion, criticism, or comparative analysis...in fact we welcome them, encourage them and learn from them," Mehta said.
The bench, however, remarked that the Rules are "overbroad" and without any guidelines. "The government is the sole arbiter without any checks and balances on what is the truth. Basically, who will fact-check the fact-checker? We will have to trust the Fact Checking Unit (to be set up under the Rules) as the final arbiter," Justice Patel said.
