IT Rules amendment is to control fake news, not to target satire against government: Central government to Bombay High Court

Humour or satire in any manner against any government is always welcome as long as it is not abusive or includes obscenity, the Central government told the Bombay High Court on Tuesday during the hearing of the petitions challenging amendments to the Information Technology Rules of 2023.

Solicitor General Tushar Mehta appearing for the Ministry of Electronics and Information Technology (MeitY) said that the rules do not prohibit any express of opinion or critical analysis against government but is only intended to rein in false news.

“Any humour or satire against the political government whether we like it or not, has nothing to do with this regulation. Unless the humour doesn’t cross boundaries like abuse or pornography. Humour satire is always welcome in any manner. It cannot be proscribed. The government is only concerned with false facts going around coupled with the fact that we are dealing with anonymous media. There is not a remotest possibility of any humour, any comedy or any satire coming under this regulation,” Mehta said. 

A division bench of Justices GS Patel and Neela Gokhale was hearing the petitions by stand up comic Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines and the New Broadcast and Digital Association challenging amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.

The Rules provide for formation of fact check units (FCUs) and the petitioners have specifically challenged Rule 3 which empowers FCUs to identify and tag what it considers ‘false or fake online news’ with respect to government's activities.

Mehta explained that the Rules have been framed taking into consideration the fundamental rights of five stakeholders - the internet user, the intermediary, the recipient, the government and the public at large.

Mehta also emphasized that the Rules of 2023 neither contain penal provisions nor does it criminalise anything.

He explained that the Rules only regulate the content and resolve disputes between the sender of content and the aggrieved person.

The parameter for the FCUs is that the content relating to government business will have to be patently false, fake and misleading and it does not hit satire or humour.

The SG also explained the procedure in which content was expected to be regulated by the FCU. 

He stated that when FCU flags content to the intermediary, it has three options - first, to take it down; second, not take it down but put a disclaimer that the content has been flagged and three, ignore the communication by FCU.

The court asked why the amendment was required if the government was not going to mandate intermediaries to comply with the communication of FCU.

It also sought to know if it could interpret provisions to add words to an existing provision.

“On one hand, there is a larger public interest and on the other hand there is a statute that has words that are ambiguous. Will it ever allow us to insert words of qualification that do not exist? How do we read information as fact and how can ‘shall’ (mentioned in the rule 3) be given a different colour to save the safe harbour provision? Is it permissible to interpret provisions like this?” the court put the question while concluding the hearing.

Mehta submitted that if any person is aggrieved by the content, it could drag the intermediary to court which would finally decide whether the content is false or not. 

Mehta added that the amendment was essential as any aggrieved person could bring an intermediary to court and the intermediary could not hide behind the ‘safe harbour’ protection under Section 79 of the Information Technology Act. 

He added that while the intermediary has right to carry on business, it should be liable and do due diligence since it earns millions.

Mehta will continue with his submissions on Wednesday.