Bombay HC raises concerns over IT Rules Amendment: No recourse for users

The Bombay High Court expressed concerns on Wednesday regarding the recently amended IT Rules designed to combat online fake news against the government The court noted that these rules offer no recourse to individuals whose social media posts have been removed or whose accounts have been suspended after being flagged by the proposed Fact Checking Unit FCUA division bench of Justices Gautam Patel and Neela Gokhale questioned where such individuals could seek redress when their posts are unilaterally taken down without any available recourse It may or may not have a chilling effect but still needs to be considered Justice Patel stated according to PTI reportThe bench was hearing arguments on a series of petitions challenging the amended Information Technology IT Rules Standup comedian Kunal Kamra the Editors Guild of India and the Association of Indian Magazines have filed petitions in the HC against the Rules terming them arbitrary and unconstitutional and claiming that they would have a chilling effect on the fundamental rights of citizensAccording to the report Solicitor General Tushar Mehta argued on Wednesday that once the FCU to be established under the Rules flags any post with fake and false facts intermediaries have the option of verifying it and removing the content or putting a disclaimer on the post The intermediaries retain their safe harbour or immunity by doing so If the intermediary does nothing then the aggrieved party either the person or the government can move to court against the post and take the intermediary to court The court would then decide the liability Mehta saidMehta clarified that intermediaries do not have the option of not taking any action once content has been flagged by the FCU The intermediary must act either way to retain their safe harbour or immunity There is no compulsion to remove but then the intermediary loses its safe harbour he saidThe bench then questioned if a remedy was available under the Rules to the person whose post has been flagged If the intermediary complies and removes the content where does the user a person whose post has been removed or account suspended go There is no recourse for the user and that is what is troubling us the user has no recoursemdashnone the bench saidThe court also questioned if a government authority in this case the FCU has the authority to decide what the truth is What is the truth We have lower courts to determine thismdasheven courts cannot answer this for suremdashcourts arrive at some level of truth because there is a process in place What lacks here is this process Justice Patel was quoted as sayingThe bench reportedly noted that it agrees with the Centres argument that several fake and false facts are being spread on the internet which is a problem not just for the government but also for society at large It raises several serious and ethical questions that can be debated The only question is the compulsion by the FCU that says it has determined not a court but it has determined something is fake and false Justice Patel saidThe bench reiterated that one thing that has not yet been clarified by the Union government is what necessitated the amendment now I still dont get why the Press Information Bureau PIB which has until now been doing the job of flagging off fake news on social media platforms was held insufficientmdashwhat warranted this amendment and an FCUmdashwhy was the PIB held as inadequate the court queriedMehta further told the court that the government was not going to be the arbiter on the issue of whether a post contained fake and false facts The government does not seek to be the arbiter Only the courts can do so he saidThe bench will continue hearing the matter on September 29In April this year after the petitions were filed the Centre had told the court that it would not notify the FCU until July The statement came to be extended from time to time when the court started hearing arguments in the pleas Last month the statement was extended until October 3On April 6 this year the Union government promulgated certain amendments to the Information Technology Intermediary Guidelines and Digital Media Ethics Code Rules 2021 including a provision for an FCU to flag fake false or misleading online content related to the governmentThe three petitions sought the court to declare the amended Rules unconstitutional and direct the government to restrain from acting against any individual under the Rules