Context: Recently the Bombay High Court directed the Ministry of Electronics and Information Technology to file its response in a plea by Kunal Kamra, political satirist and stand-up artist, challenging the constitutional validity of the Information Technology Amendment Rules, 2023.
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Amendment Rules, 2023)
- As per the Rules notified on April 06, 2023, the Ministry will notify several self-regulatory bodies tasked with determining the permissibility of online games [Rule 4A(1)].
- Further, a fact check unit notified, based solely on the discretion of the Union Government, will be empowered to identify fake or false or misleading online content related to the government [Rule 3(1)(b)(v)].
- The inclusion of the latter under Rule 3 makes taking action against content identified by such a fact-check unit a due diligence requirement for intermediaries.
- In an event where any intermediaries, including social media intermediaries (Facebook, Twitter etc.), Internet Service Providers (ISPs) (Airtel, ACT, Jio etc.), or other service providers, fail to/ decide against taking action on content identified as “fake” or “false” by the notified fact check unit, they will risk losing their safe harbour protections.
Why new rules are being Questioned?
- Assigning any unit of the government such arbitrary, overbroad powers to determine the authenticity of online content bypasses the principles of natural justice, thus making it an unconstitutional exercise.
- The notification of these amended rules cements the chilling effect on the fundamental right to speech and expression, particularly on news publishers, journalists, activists, etc.
- The fact check unit, notified by the Executive, could effectively issue a takedown order to social media platforms and even other intermediaries across the internet stack, potentially bypassing the process statutorily prescribed under Section 69A of the IT Act, 2000.
- In addition to circumventing the parliamentary procedures required to expand the scope of the parent legislation, i.e., the IT Act.
- These notified amendments are also in gross violation of the Hon’ble Supreme Court ruling in Shreya Singhal vs. Union of India (2013) which laid down strict procedures for blocking content.
- Finally, the vagueness of the undefined terms such as “fake”, “false”, and “misleading” make such overbroad powers further susceptible to misuse.