The Bombay High Court on Thursday pondered whether the Fact Check Unit (FCU) under the amended Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 to identify and act against fake news, would be made applicable to print media as well.
“Has the Centre distinguished between the print and online media? If the exact same content is in the print (media) and online, will the print (media) remain without FCU interference? Would FCU ask only the online content to be taken down” asked a division bench of Justices Gautam Patel and Neela Gokhale.
Rules are “arbitrary, unconstitutional”
The HC was hearing a batch of petitions challenging the amended IT rules including a provision for an FCU to flag fake or false or misleading online content related to the business of the government. The petitions filed by stand-up comedian Kunal Kamra, the Editors Guild of India and the Association of Indian Magazines sought directions against the framing of the rules calling them “arbitrary, unconstitutional”. The pleas contend that it would have a “chilling effect” on the fundamental rights of citizens.
During the hearing on Thursday, the bench asked how does the Centre propose to address this bridge between the information in print and digital media?
Kamra’s counsel Navroz Seervai replied that the Centre was harping on the “reach, permanence and virality” of content while trying to control information through the FCU. The counsel pointed out that there is a hierarchy in most newspapers which decides what ultimately gets printed. However, as far as online content is concerned, anyone can publish anything.
Advocate Shadan Farsat, appearing for the Editors Guild of India (EGI), argued that the Centre has not addressed this dichotomy.
Every newspaper has online version
The bench remarked that every newspaper has an online version. Whether that would be considered as an intermediary and would be asked to take down content which the FCU feels is “false, fake or misleading”? asked the bench.
“If there is an opinion printed in a newspaper and someone clicks a photo and puts it on twitter. They (FCU) ask twitter to delete it, but what about print? It (opinion) doesn’t speak through medium (print) and does through content,” remarked Justice Patel.
Farsat said that the government is trying to hit through circulation. If the content is barred on a certain medium, the circulation will go down. “In newspapers, advertisement is the biggest medium of income. If that is curtailed, circulation will be affected. Circulation is a part of freedom and expression,” said Farsat.
The bench remarked that apart from the right to vote, democracy also involves the right to have an informed choice. It also said that the amendment was a sort of a “diktat” as it does not give an opportunity to justify or defend the content.
Justice Patel further said that the “most troubling” thing was why the government has taken the role of 'loco parentis' (regulation or supervision by an administrative authority) only for content pertaining to government business and not for every information or content posted on social media.
Online vs Print
“The (Centre’s) reply says we need to do this because we are in ‘loco parentis’. But why only for the business of the government? You should be in ‘loco parentis’ for everything. The Internet is fertile ground for hoaxes. It should be loco parentis for everything,” remarked Justice Patel.
The judge further said, “I find it remarkable that the effect of the rules kicks in without any show-cause notice or opportunity to justify or defend the content. This itself removes the safe harbour provided. It is sort of a diktat.”
On a lighter note, Justice Patel said, “The government has a mobile app Kavach which is supposed to provide citizens security cover. This (amended IT rules) is removing your Kavach… that is what is happening.”
The HC will continue hearing the matter on July 14.
