Source: Bombay High Court

Why in News?

Recently, the Bombay High Court in the matter of Kunal Kamra v. Union of India & Connected Matters., has held the proposed Fact Check Unit under the 2023 amendment to the Information & Technology Rules 2021 directly infringed fundamental rights provided under Article 19(1)(g) of the Constitution of India, 1950 (COI) due to the differential treatment between online and print content.

What was the Background of Kunal Kamra v. Union of India & Connected Matters. Case?

• In this case, a complaint has been filed against the Central Government’s 2023 amendment to a particular Rule 3(1)(b)(v) under Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
• Through the amendment, the Central Government has appointed itself as the sole arbiter of what is or what is not fake, false or misleading.
• As per the Petitioners, such an amendment of the Proposed Fact Check Unit is violative of constitutional freedoms specifically, those guaranteed under Article 19(1)(g) of the COI.
• So, a petition has been filed before the High Court of Bombay which was later allowed by the Court.

What were the Court’s Observations?

• Justice Patel observed that any particular information does not become fake, false or misleading only because it is digital. Examples can be endlessly multiplied.
• It was also held that social media has become the primary news medium for the last half-decade or so. There is some material to show a precipitous decline in hard-copy newspaper readership in India. That in turn means a stagnation or decline in advertising revenue. Social media is thus the primary driver for news dissemination.
• It was further stated that the impugned Rule targets social media content even for news outlets that have a print media (and about which nothing is or can be proposed). There is, thus, a direct infringement of Article 9(1)(g). The impugned Rule pushes out of the news cycle the digital version of any reportage with which the Central Government disagrees.

What are the Relevant Legal Provisions Involved in it?

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

• On 25^th February 2021, the Union of India notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
• Amendments to the Rule 3:
  • Rule 3 is the contentious rule. Parts of it were amended in 2022 and then again in 2023. There is no challenge to the 2022 amendment.
  • The grounds in subclause 1 of rule 3 have been rationalized by removing the words ‘defamatory’ and ‘libellous’.
  • Whether any content is defamatory or libellous will be determined through judicial review.
  • Some of the content categories in subclause 1 of rule 3 (rule 3(1)(b)) have been rephrased to deal particularly with misinformation, and content that could incite violence between different religious/caste groups.

Article 19(1)(g) of the COI

• Article 19 (1) (g) of COI provides the right to practice any profession or to carry on any occupation, trade or business to all citizens subject to Art.19 (6) which enumerates the nature of restriction that can be imposed by the state upon the above right of the citizens.