MeitY Informs Bombay High Court: No Immunity to Intermediaries that Fail to Remove Content Flagged by Fact Checking Unit Under IT Rules Amendment

MeitY Informs Bombay High Court: No Immunity to Intermediaries that Fail to Remove Content Flagged by Fact Checking Unit Under IT Rules Amendment

The Union Ministry of Electronics and Information Technology (MeitY) in an affidavit has informed the Bombay High Court that in case a social media or news website decides to continue hosting information which has been flagged ‘false’ or ‘misleading’ by the Government’s Fact Checking Unit (FCU) it will have to defend its decision before a Court if an action is taken.

In the present case, the Bombay High Court was adjudicating a plea challenging the Centre’s notification to establish a fact-checking unit to cross-check and verify any-and-all information about the government present on social media platforms.

The plea was moved by a social and political satirist Kunal Kamra, who challenged Rule 3(i)(II)(A) and (C). These rules are a part of the Information Technology Rules of 2022, which were first notified in February 2021 and were later amended in 2022 and empowered the Centre to establish a government-run fact-check unit.

The High Court had asked the Ministry of Electronics and Information Technology to file a detailed affidavit on the reasons behind the proposal to set up the fact-checking unit and the background of the rules under which the proposal was moved.

The affidavit submitted by the Centre added, “the immunity such a website or intermediary enjoys from liability under Section 79 of the IT Act wouldn’t apply if it failed to pay heed.”

During the hearing the Ministry extended its statement not to notify the FCU till June 10.

Moreover, the affidavit refuted the petitioners’ accusations that the FCU would have a chilling effect on free speech or it could order an intermediary to take down content about government, found misleading and fake, and states that the only real deviation from the previous Rules is intermediaries not enjoying absolute immunity.

The affidavit reads:

“The only distinction would be if the intermediary, despite knowledge about the fact check exercise finding the information/content to be misleading, fake or false chooses not to take any step [which it can choose to do], it would not get immunity from liability under section 79 of the IT Act and will have to defend its action on merits before the court of law where an action is instituted against the Creator or Sender and the intermediary.”

The Centre argued that in addition to right to information, right to get true information also forms part of the fundamental right.

“The government is under a constitutional obligation to ensure that through a regulatory mechanism, the citizens of this country get information and content which is true and correct and are protected from receiving deceptive and intentionally propagated and peddled information,” the affidavit said.

The affidavit further elucidated regarding the process that would be adopted in the event a creator or author intentionally publishes or shares misleading content the recipient who is misled or defamed by it can approach the intermediary’s grievance redressal mechanism under Rule 3(2) of the IT Rules. The aggrieved party can then approach the Grievance Appellate Committee under Rule 3A of the Rules.

In case of failure of the two remedies available, the viewer of the content or affected party could approach the court.

Thereafter, the Court would then have to decide if the content is false, untrue or misleading and whether it was communicated knowingly or intentionally.

It was clarified through the affidavit that it is not the FCU that would order the take down of content but the Court that would take a final call on this.

“However, if such displaying, uploading, publishing, transmitting, storing or sharing causes any harm to anyone or causes public mischief or law and order situation, or endangers national security, appropriate legal proceedings can be initiated and only the court will be the final arbiter about the information/content being fake, false or misleading and whether the same has been knowingly and intentionally communicated,” Centre contended.

The matter has been listed for final hearings on 6th July. The Solicitor General Tushar Mehta will represent MeitY during the proceedings.