Stand-up comedian Kunal Kamra on Tuesday moved the Bombay High Court challenging the recent amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021).
The amendments, specifically Rule 3, provide that the Central Government’s Ministry of Electronics and Information Technology may notify a fact-checking body, which is empowered to identify and tag what it considers false or fake online news pertaining to any Central Government activity.
In order to maintain their safe harbor protection under Section 79 of the Information Technology Act, the telecom service providers and social media intermediaries will then need to take action against such content.
Kamra approached the Court to overturn the revised Rule 3(1)(b)(v).
The Court scheduled the matter for hearing on April 21,2023.
Senior Advocate Navroz Seervai, representing Kamra, stated that the amendments violate free speech under Article 19 and will have a chilling effect, and thus should be stayed.
“These rules are there, the chilling effect is already there. The rule is enough to chill people. After publication of this notification, I am liable to fact checking committee. I will not have say when it is retrospectively applied,” Advocate Seervai stated.
The government, according to Kamra’s lawyer, cannot identify what is fake and false news because doing so would amount to the government acting as a judge in its own cause, which would violate natural justice principles.
“This identification cannot be by the government itself. There cannot be restriction on Article 19 at all. The rules do not come within the reasonable restrictions. Reasonable runs through it. This is against interest of public, this is neither reasonable. Look at the natural justice angle, there is no show cause, no notice,” he pointed out.
He also mentioned that social media platforms have policies in place to deal with fake news, as well as various safeguards.
If those safeguards are removed, many people’s careers that rely on social media will be over.
“There are rules on social media websites. They may give you notice once or twice, and if you continue to do so, your account will be suspended. If this continues, your account will be deactivated. Some people make a living through social media platforms. “If that is taken away, their career is over,” he contended.
Additional Solicitor General Anil Singh, representing the Central Government, stated that because the amendments have not yet taken effect, no interim order is required.
