This article has been published on Mondaq at https://www.mondaq.com/india/trials-appeals-compensation/1531464/bombay-high-court-quashes-establishment-of-fact-checking-unit-a-win-for-intermediaries.

“The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” – Former Associate Justice of the Supreme Court of the United States

INTRODUCTION

The internet has made information easily accessible with people around the world having the latest updates at their fingertips. However, this free-flowing and largely unregulated dissemination of information has also led to the spread of misinformation with sometimes devastating impacts. This duality has fueled an ongoing debate over the responsibilities of intermediaries (such as social media platforms) in curbing false or misleading information, particularly when such information pertains to the government.

While some advocate for the unfiltered availability of information, others argue for fact-checking mechanisms to limit the spread of false content. At first glance, the demand for true and accurate information seems reasonable. However, the question of who decides what constitutes “true and accurate” is at the heart of a recent legal challenge.

This conundrum was central to the case recently decided by the High Court of Judicature at Bombay (“BHC”) in Kunal Kamra v. Union of India^[1] (“Judgment”). The BHC examined Rule 3(1)(b)(v)^[2] (“Impugned Rule”) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, as amended in 2023 (“Intermediary Rules”). In this article, we discuss the facts leading up to the Judgement, the relevant provisions under Clause 36 of the Letters Patent of the Bombay High Court (“Letters Patent”) and the Judgment’s impact on intermediaries.

FACTS LEADING UP TO THE JUDGMENT

Rule 3(1)(b)(v) of the IT Rules was amended by Rule 3(i)(II)(C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2023 (“2023 Amendment”). The Impugned Rule essentially imposed an obligation on the intermediaries to take “reasonable steps” to inter alia not host, display, upload etc. any information that is identified as “fake or false or misleading” by the Fact-Checking Unit (“FCU”) in relation to any business of the Central Government. If intermediaries failed to fulfil this obligation, they would lose the “Safe Harbor Protection” granted under Section 79 of the Information Technology Act, 2000 (“Act”)^[3].

In April 2023, a writ petition was filed in the BHC challenging the constitutional validity of the Impugned Rule as being violative of Articles 14, 19(1)(a), 19(1)(g) and 21 of the Constitution of India (“Constitution”), as well as Section 79, Section 87(2)(z) and Section 87(2)(zg) of the Act. The writ petition was initially heard by a division bench consisting of Justice G.S. Patel and Justice Dr Neela Gokhale, who delivered a split decision on January 31, 2024. Justice Patel upheld the challenge, while Justice Gokhale dismissed it.

Due to the split decision of the BHC, the matter was referred to a third judge, Justice A.S. Chandurkar under Chapter-I Rule 7 of the Bombay High Court Appellate Side Rules, 1960 read with Section 98 of the Code of Civil Procedure, 1908 and Clause 36 of the Letters Patent. During the pendency of the proceedings, Justice Chandurkar on March 11, 2024, rejected the interim relief that would have halted the notification of the FCU. However, on appeal, the Supreme Court stayed the notification of the FCU until the final disposal of the writ petition^[4].

On September 20, 2024, Justice Chandurkar passed his Judgment striking down the Impugned Rule thereby holding the establishment of the FCU being ultra-vires to the Act.

CLAUSE 36 OF THE LETTERS PATENT

Before delving into the Judgment, it is important to understand the scope of Clause 36 of the Letters Patent. When the judges of a Division Bench are equally divided, Clause 36 mandates that the point(s) of difference be referred to another judge. The decision of the case is then rendered in accordance with the majority opinion, including the third judge’s input. The reference judge, however, cannot decide on points where (i) there is no difference of opinion, (ii) only one judge expressed an opinion; and (iii) new issues are raised that were not part of the original bench’s deliberations.

In light of the above, Justice Chandurkar was only required to address points on which Justices Patel and Gokhale had differing views. Justice Chandurkar was not required to address two points, namely, classification and discrimination and violation of principles of natural justice.

On the point of classification and discrimination, Justice Patel held that there was no justification why the business of the Central Government should stand on special footing to be distinct from other information. To satisfy the test of equality under Article 14 of the Constitution, the differentiation must be intelligible and distinguishing for some discernible reason within the class from those left out. However, the Central Government did not constitute a class in itself in order to justify preferential treatment to it. Therefore, the Impugned Rule was discriminatory and fell foul of Article 14 of the Constitution. Justice Gokhale did not express any opinion of the same.

On the point of violation of principles of natural justice, Justice Patel noted that there were no guidelines for operating the Impugned Rule, no procedure for hearing and there was no opportunity to counter that the information was not fake or false or misleading. The Impugned Rule provided for subjective satisfaction to be recorded on unknown material. There was no requirement for the FCU to pass a reasoned order due to which it would not be possible to gather the material based on which the FCU had acted upon. Therefore, the Impugned Rule violated the principles of natural justice. However, as Justice Gokhale did not express any opinion on the same, Justice Chandurkar rules, that he isn’t required to rule on them.

JUDGMENT

 Justice Chandurkar, in his role as the reference judge, focused on the following nine key points.

a. Article 19(1)(a) and Article 19(2) of the Constitution

Justice Chandurkar observed that the right to freedom of speech and expression does not extend to a “right to the truth”. Nor is it the responsibility of the State to ensure that the citizens are exposed only to information deemed not “fake or false or misleading” by the FCU. He held that the Impugned Rule sought to impose restrictions on free speech that were not in line with the exceptions permitted under Article 19(2) of the Constitution. Therefore, Justice Chandurkar agreed with Justice Patel that the Impugned Rule was ultra-vires Article 19(1)(a) and Article 19(2) of the Constitution.

b. Violation of Article 19(1)(g) read with Article 19(6) of the Constitution

Justice Chandurkar highlighted that the Impugned Rule created a distinction between digital and print media, with the rule applying only to the former. There was no rational basis for imposing stricter obligations on intermediaries for digital content concerning the Central Government, while similar content in print media was exempt. This unequal treatment, without justification, led him to conclude that the rule infringed on the right to carry on trade or profession under Article 19(1)(g). Therefore, Justice Chandurkar agreed with Justice Patel on this ground as well.

c. Violation of Article 14 of the Constitution: Government as Arbiter in Its Own Cause

Justice Chandurkar agreed with Justice Patel that the FCU, being constituted by the Central Government, made the government an arbiter in its own cause. This unilateral determination of content related to the government’s business as “fake or misleading” was problematic and violated the principles of fairness under Article 14.

d. Knowledge and Intent

The distinction between content related to non-government and government business was noted by Justice Chandurkar. He observed that the Impugned Rule created an obligation for intermediaries to remove content related to the Central Government without considering the intermediary’s knowledge or intent. This was a departure from the previous rule, which focused on the user’s awareness of the content’s falsity. Justice Chandurkar agreed with Justice Patel that this distinction was unjustified and held that the 2023 amendment as regards “business of the Central Government” is independent of the knowledge and intent of the user.

e. The Expression “fake or false or misleading”

Justice Chandurkar observed that there is no indication as regards the manner of identifying “fake or false or misleading” information and each word is used in a disjunctive manner being separated by the word “or”. Additionally, “misleading” has various dimensions without any idea being given as to what it would connote. As the Impugned Rule attempts to identify “information” as fake or false or misleading, the expressions must be either defined or explained to broadly give an idea of what could be termed to be fake or false or misleading. Therefore, Justice Chandurkar agreed with Justice Patel and held that in the absence of any guidelines under the Intermediary Rules to indicate the scope of “fake or false or misleading”, the Impugned Rule is vague and overbroad rendering it liable to be struck down.

f. The Impugned Rule being Ultra-Vires the Act

Justice Chandurkar observed that the 2023 Amendment has not been effected in accordance with Section 87(3) of the Act. The amendment was supposed to be laid before each House of Parliament in the manner prescribed by Section 87(3) of the Act. However, it has not been shown that the same was done for the Impugned Rules. However, the Impugned Rule created substantive law beyond the Act and did not relate to anything permissible either under Section 69A or Section 79 of the Act.

Justice Chandurkar also observed that the Impugned Rule sought to impose restrictions beyond those permissible under Article 19(2) of the Constitution and suffered from manifest arbitrariness for not being in conformity with the Act. Therefore, Justice Chandurkar agreed with Justice Patel and held that the Impugned Rule was ultra vires the Act.

g. The Chilling Effect of the Impugned Rule

Justice Chandurkar emphasized that the vagueness of the terms “fake, false, or misleading” could lead intermediaries to pre-emptively censor content out of fear of losing their safe harbor protections. He agreed with Justice Patel that this could have a chilling effect on free speech.

h. Saving the Impugned Rule by Reading It Down

The Division Bench had also considered whether the Impugned Rule could be read down so as to save it from being struck down. Some potential options were (i) limiting the operation of the Impugned Rule to information that was fake or false ignoring the word misleading; (ii) excluding any opinion, view, commentary, satire or criticism from the expression information; (iii) putting out a disclaimer and (iv) restricting the operation of the term information only to facts.

Justice Chandurkar held that limiting the operation of the Impugned Rule only to fake or false information and ignoring the word misleading would not be an exercise of reading down but would amount to reading out the word altogether. Further “information” is an inclusive term under the Act and its operation cannot be restricted by urging that the Impugned Rule was not intended to affect political views, satire, opinions etc. and was to be applied only to facts. Therefore, Justice Chandurkar agreed with Justice Patel and held that the Impugned Rule could not be saved by reading it down as such reading down would alter the rule’s meaning and was, therefore, impermissible while relying on decisions of the Supreme Court that had held the same to be impermissible while dealing with similar cases.

i. Aspect of proportionality

Finally, Justice Chandurkar observed that the Impugned Rule seeks to disproportionately restrict fundamental rights guaranteed under Article 19(1)(a) and 19(1)(g) of the Constitution and there are not sufficient safeguards against the abuse of the Impugned Rules. Therefore, Justice Chandurkar agreed with Justice Patel and held that the Impugned Rule cannot be sustained on the grounds of proportionality.

Basis the above, Justice Chandurkar held that the Impugned Rule is liable to be struck down.

IMPACT OF THE JUDGMENT ON INTERMEDIARIES

The Judgment is a significant victory for intermediaries, especially social media platforms. It reinforces the protection of free speech, particularly in relation to political discourse and criticism of the government. The Impugned Rule posed a risk of censoring/stifling such discussions, as intermediaries could have been forced to take down content deemed offensive by the FCU to avoid losing safe harbor protections. With this Judgment, intermediaries can continue to provide platforms for open dialogue, without the fear of censorship imposed by the government hanging over them.

CONCLUSION

The Judgment is a monumental step by the BHC in protecting the freedom of speech while curbing governmental overreach in controlling information dissemination. Although combating misinformation is important, the Impugned Rule, by focusing solely on the business of the Central Government, appeared more like an attempt to control the narrative around government actions rather than a genuine effort to curb falsehoods and to prevent the spreading of false, fake and misleading information.

As of now, no appeal has been filed by the government against this Judgment. It will be interesting to see how this issue unfolds and further develops before the Supreme Court when an appeal is filed.

Footnotes:

[1] Writ Petition (L) No.9792 of 2023

[2] Rule 3. (1) Due diligence by an intermediary: An intermediary, including a social media intermediary, a significant social media intermediary and an online gaming intermediary, shall observe the following due diligence while discharging its duties, namely:

…..

(b) the intermediary shall inform its rules and regulations, privacy policy and user agreement to the user in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice and shall make reasonable efforts by itself, and to cause the users of its computer resource to not host, display, upload, modify, publish, transmit, store, update or share any information that,-

…..

(v) deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature or, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify.

[3] Rule 7 of the Intermediary Rules

[4] Civil Appeal Nos 4509-4511 of 2024. Our article on the same is available at https://www.azbpartners.com/bank/get-your-facts-right-stay-on-the-fact-check-notification-by-the-supreme-court/