Government has come up with Fact-Check Unit owing to fear of unknown: Bombay High Court

The Bombay High Court on Thursday remarked that if the consequences of a rule or law are unconstitutional, it cannot survive no matter how laudable the motive behind its introduction was..A Bench of Justices GS Patel and Neela Gokhale made the observation while hearing pleas filed by the Editors Guild of India, the Association of Indian Magazines and the New Broadcast and Digital Association challenging the revised Rule 3(1)(b)(v) and Rule 3(i)(II)(A), (C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.The amendments to the IT Rules, specifically those to Rule 3, provide that the Central government can notify a Fact Checking Unit (FCU) which is empowered to identify and tag what it considers false or fake online news with respect to any of the government's activities..The Court observed that the government may have come up with FCUs because of the power and extent of the internet.“You do not understand the extent of the realm, reach and power of technology. This would not have been necessary in case of print. You just do not understand what the internet can do. Governments cannot do away with the internet as that is where they carry out their business. But it comes with its limitations. This is more like the fear of the unknown. And this is why the government has come up with this (FCU). Whether it is legitimate or not is what we have to decide,” the judges said at the end of the hearing..Senior Advocate Navroz Seervai opened the arguments today on behalf of stand up comic Kunal Kamra. He questioned whether the government had such little faith in the citizens that it had to take on role of parents of nanny to them.“Do they need to be treated by a nanny State? Does the government have so little faith and confidence in the public that they say 'we have to be like a mother to them, or like a nanny, and shield them'?” he argued. “No matter how laudable or high the motives are, if the effect is unconstitutional then it has to go,” the Bench said in response..The Court also questioned whether online sites hosting critical comments on statements during the campaign trail for elections to be held in 2024 will lose safe harbour, if the government’s fact-checking unit flags any content as ‘false’ and if the hosting site refuses to remove the same.“As we are approaching 2024, people will say things on the campaign trail. Suppose an online person questions the statements made on the campaign trail by a political spokesperson, calls it out and if FCU says remove it, how can it do that? Is that the business of the government? Can a site hosting this lose safe harbour if the government's FCU flags it as false and they refuse to remove it?”.This apart, the Bench wondered why there was a need for the amendment when the government-run Press Information Bureau (PIB) was in existence.“They are saying FCU is not introduced now, but PIB had existed since long. Where do we find an explanation in replies as to why that structure is inadequate and why you need amendment? Whenever PIB issues a clarification, every news channel and paper carries it,” the judges asked..Seervai’s contention was that the amendment was the government’s way of ensuring social media only covers what the government wants. He further submitted that intermediaries were not concerned with the content they were hosting on their websites, and hence, would comply with the directions. “They (intermediaries) are in a way the most vulnerable target. It is not necessary in their interest to retain the material they have hosted at the cost of losing safe harbour. Hence they have not bothered or dared to challenge the rules,” the lawyer emphasized..The Union Ministry of Electronics and Information Technology (MeitY) had filed an affidavit justifying the amendment, stating that false and misleading information could impact the electoral democracy and weaken the trust of citizens in democratic institutions.It also clarified that any information identified as false and misleading by the FCU under the amended IT Rules, 2021 would not result in automatic take down of such content. The Court will continue hearing the matter on July 7.