Final call to take down content left to intermediaries: Govt submission to Bombay HC

The Central Government in its submission to the Bombay High Court has clarified that the fact check unit proposed to be set up by the government will focus on patently false government-related content, and that its role is only to flag and present views on misinformation, leaving the final call to (take down content to) intermediaries.

There will also be a provision of internal redressal mechanism in place and the courts can step in if issues remain unresolved, the government said in its submission.

It was also submitted that the new rules aim to combat false news on anonymous platforms without penalising humour or criticism of the government. The definition of information is limited to facts that can be true or false, the government has said.

The Solicitor General of India Tushar Mehta made submissions on behalf of the Ministry of Electronics and Information Technology (MeitY) before the Bombay High Court in a challenge to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Amendment Rules, 2023) on September 26 and 27.

These rules permit a fact check unit of the Union Government to identify fake, false, or misleading online content related to the business of the Central Government and demand its removal from the internet.

The fact check unit to be constituted under the IT Amendment Rules, 2023 will be the deciding authority for what information is false or true or accordingly, what information can stay online or must be taken down, said Gayatri Malhotra, Associate Litigation Counsel, Internet Freedom Foundation (IFF), said.

IFF is providing legal counsel to political satirist Kunal Kamra and Association of Indian Magazines, who are the petitioners in this case. Another petitioner is the Editors Guild of India.This pertains to a case being heard regarding the constitutionality of the Information Technology (Amendment) Rules, 2023 in a PIL filed by Kamra and the Association of Indian Magazines.

The Editors Guild of India has also filed a petition in this regard.

“If the intermediary does not remove information flagged by the fact check unit, it risks losing its safe harbour under Section 79 of the IT Act. This could seriously threaten the independence of the free press on the Indian internet,” Malhotra said.

“’Fake’, ‘false’ and ‘misleading’ are vague and overbroad terms and have a chilling effect on free speech. Intermediaries will prioritise removing content flagged by the government rather than jeopardise their safe harbour status,” she explained.

The matter will next be heard on September 29, when rejoinder submissions are expected to be concluded, she said.

The Centre has given an undertaking to the Bombay High Court to not notify the proposed fact check unit until October 3.

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