The Bombay High Court delivered a split verdict on the constitutional validity of government-mandated fact-checking rules for online content. Justices Patel and Gokhale differed on the maintainability of the petition, the scope of free speech, and the interpretation of takedown mandates. Patel expressed concerns about potential censorship and infringement on free speech, while Gokhale emphasized the government's duty to ensure accurate information. The disagreement reflects broader divergences in views on state-citizen dynamics and the role of government in determining truth online.
On January 31, 2024, the Bombay High Court delivered a split verdict on a batch of petitions seeking to strike down Rules 3(1)(a) and 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These rules, inserted via the 2023 amendment to the IT Rules, 2021, grant the government authority to set up a fact checking unit to filter social media platforms for fake, false or misleading content. Through this amendment, the Central Government has appointed itself as the sole arbiter of what is fake, false and misleading. It, and it alone will decide what is or is not the truth, and when it does, social media intermediaries are required to make reasonable efforts to prevent users from uploading or transmitting the content flagged by the fact check unit. Failure to do this automatically results in the social media intermediary losing its statutory safe harbour under the IT Act, thereby exposing it to civil and criminal liability for user generated content. At the heart of the challenge lies the contention that the amendment is overbroad, vague and without controlling guidelines. It does not provide an opportunity for the propounder of the information to defend its correctness, and the government becomes a judge in its own cause. Overall, this can have a chilling effect on the right to free speech and freedom of press.
In its ruling, the Division Bench, comprising Justice GS Patel and Justice Neela Gokhale, adopted divergent views on the constitutional validity of the 2023 amendment to Rules 3(1)(a) and 3(1)(b)(v) of the IT Rules. While Justice G.S Patel struck down the amendment, Justice Neela Gokhale’s judgment upheld it. A closer reading reveals that there are broadly three areas of disagreement among the judges.
Firstly, they diverge on the maintainability of the petition. As per J. Gokhale, the petition is not maintainable as the fact check unit has not been notified, and no takedown action has been initiated by the State in pursuance of the amended rules. J. Patel argues differently, stating that the absence of overt state action is not relevant to the petition’s maintainability. According to J. Patel, the broad and vaguely worded amended clause poses a threat to the right to free speech. It instills a chilling effect on free speech rights, and actual censorship isn’t necessary to constitute an infringement to these rights. This perspective aligns with the approach taken by the Supreme Court in the Shreya Singhal case, where the entire discussion on the chilling effect of Section 66A on free speech was clearly directed towards the anticipated future impact of the rule.
Second, both the judgments disagree on what constitutes free speech and the permissible scope of restrictions on free speech outlined in Article 19(2) of the Constitution. J. Gokhale asserts that false speech falls outside the realm of free speech and does not enjoy constitutional protection. Conversely, J. Patel emphasizes that Article 19(1)(a) protects all forms of expression, and any statutory limitation of free speech must strictly adhere to Article 19(2). Notably, none of the eight grounds specified for restricting freedom of speech under Article 19(2) envisage censoring information solely based on its falsity. Consequently, the right to freedom of speech inherently includes the right to make speech that may be contested as fake, false or misleading. It is only when such false speech intersects with one of the grounds enumerated under Article 19(2) that reasonable restrictions can be imposed on it. In this context, J. Patel notes, the amended Rule erroneously targets falsity itself as a basis for content restriction, divorced from any specific part of Article 19(2).
Third, the judgements diverge on the interpretation of the takedown mandate under the amended rule and its impact on safe harbour protection. According to J. Gokhale, Rule 3(1)(b)(v) does not compel intermediaries to remove flagged content outright. It merely obliges the intermediary to make reasonable efforts to prevent hosting or sharing of misinformation, which may include issuing disclaimers or warnings. Safe harbour immunity is only lost if the intermediary fails to take reasonable steps to address the situation. J. Gokhale views this rule as relatively benign, as it does not necessarily lead to the removal of content or significantly impede free speech. In contrast, J. Patel acknowledges the limited choice intermediaries have when confronted with content flagged by the fact-check unit. He notes that presenting intermediaries with the prospect of losing statutory safe harbour effectively mandates censorship. No intermediary will ever risk losing safe harbour. Its business depends on safe harbour and immunity from prosecution for hosted content. The potential risks associated with the loss of statutory safe harbour are thus so profound, that the takedown of content flagged by the State’s fact check unit is an inevitability. The deprivation of safe harbour is therefore not a minor procedural issue, but one with substantive consequences for free speech.
In conclusion, the foundational differences between the two judges lead them to characterize the amended Rule in diametrically opposed manners. This disparity essentially arises from their differing perspectives on the state-citizen dynamic. Justice Gokhale's judgment rests entirely on the premise that the government, acting as parens patriae, is duty-bound to ensure that citizens receive only accurate information. However, this approach assumes that the reader is infantile and incapable of making their own decisions. It comfortably entrusts the state with powers to dictate online truth, a notion that diverges significantly from Justice Patel's judgment. Justice Patel expresses concern about the necessity of such a measure, arguing that it is unthinkable for any single entity, whether the government or otherwise, to unilaterally determine what is fake, false, or misleading. What constitutes fake, false, or misleading information is entirely subjective, for there exist no absolute truths even in governmental affairs.