Action Mandatory: Solicitor General Mehta On Online Posts Flagged By Fact Check Units

The Bombay High Court has recently heard arguments on a bunch of petitions challenging the amended IT Rules.

Defending the Fact Check Units to be set up under the Rules, Solicitor General of India Tushar Mehta told the court that online and social media platforms would have no choice but to take action on the content flagged by the units.

While making submissions on behalf of the government, Mehta stated that the platforms or intermediaries had two options take down the fake post or put a disclaimer on it.

Mehta stated, “The resolution of the issue can be reached by either taking down the fake or false part, or, depending upon the nature of the content, putting a disclaimer (at the risk of the intermediary). There is no third option of not doing anything about it.”

He further stated, “The intermediaries retain their safe harbour or immunity by doing so. If the intermediary does nothing, then the aggrieved party (either the person or the government) can move court against the intermediary. The court would then decide the liability.”

A bench of Justices Gautam Patel and Neela Gokhale questioned where an online user goes in a situation when their post is unilaterally closed with no recourse available.

The bench stated, “If the intermediary complies and removes the content, where does the user (person whose post has been removed or account suspended) go? There is no recourse for the user and that is what is troubling us. The user has no recourse. None.”

The bench also questioned if the FCU has the authority to decide what the truth is.

Justice Patel pointed out, “What is the truth? We have lower courts to determine thisâ€æeven courts cannot answer this for sureâ€æcourts arrive at some level of truth because there is a process in place. This process has been defined in our system. What lacks here is this process.”

However, Mehta, submitted that the government wasn’t going to be the arbiter on the issue of whether a post contains fake and false facts. He stated, “The government does not seek to be the arbiter. Only the courts can do so.”

The bench agreed that there was a dark side to internet usage, but Justice Patel added, “I still don’t get why the Press Information Bureau (PIB), which has until now been doing the job of flagging off fake news on social media platforms, was held insufficient. What warranted this amendment and the FCU? Why was the PIB held as inadequate?”
The bench will continue hearing the petitions on September 29.