Source: Bombay High Court 

Why in News? 

Recently, the Bombay High Court in the matter of Kunal Kamra v. Union of India has held that the citizens only have the “right to free speech and expression” and not the “right to know truth” and therefore the State cannot claim that only true information is to be disseminated amongst the citizens.

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

• In the present case, the validity of Rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules) as amended were challenged by the petitioner. 
• The petitioner in the present case is a political satirist and commences his business over social media platforms. 
• It was pleaded that the rule may lead to arbitrary censorship by the Fact Check Units (FCU) which may lead to removal of his contents from the social media platforms. 
• It was also pleaded that the aggrieved person has no remedy if his content is flagged fake by the FCU. 
• The Ministry of Information and Technology argued that censorship is required so as to prevent the spread of misleading information and is in the interest of public at large. 
• It was argued that the Central Government can establish Fact Check Units (FCU) to prevent the spread of fake news amongst the citizens on the social media platforms. 
• It was challenged that the amendment under IT Rules is ultra virus and is in violation of Article 14 and Article 19 of the Constitution of India (COI) 
• The Division Bench held a split opinion that: 
  • Rule 3(1)(b)(v) of the IT Rules as being ultra vires the provisions of Articles 14, 19(1)(a) and 19(1)(g) of the COI. 
  • Section 79 of the Information Technology Act, 2000 (IT Act) is in violation of the principles of natural justice. 
  • While Justice Dr. Neela Gokhale held that the rule is not in violation of the articles of the constitution neither is contrary to the judgement of Shreya Singhal v. Union of India (2015). 
• Due to the split opinion by the Division bench the matter was referred to Bombay High Court for third opinion and to break the tie. 

What were the Court’s Observations? 

• The Bombay High Court in the present case observed that: 
  • Information in digital form is not subjected to the provisions of Rule 3(1)(b)(v) of IT Rules but only when in print form. 
  • The amendment would lead to infringement of the Right to equality of Digital media users as the applicability of Rule 3(1)(b)(v) of IT Rules is only when an information is in printed form. 
  • The role of FCU is to determine whether any information against the business of the Central government is fake or misleading and whether the government is the aggrieved party in the matter or not. 
  • The Central Government is acting as an arbiter in the present case. 
  • The FCU shall work only for the Central Government and not for the State Government. 
  • The FCU had no guidelines that are to be followed to check the validity of the information. 
• The Bombay High Court after making the above observations held that: 
  • The amendment of Rule 3(1)(b)(v) of IT Rules is in violation of Article 21 of the COI as the test of proportionality is not being used properly while making the amendment. 
  • The amendment is ultra virus and violates Article 14 and Article 21 of the COI. 
  • The citizens only have the “right to free speech and expression” and not the “right to know truth” and therefore the State cannot claim that only true information is to be disseminated amongst the citizens. 

What are IT Rules 2021? 

• The Government of India enacted the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021) on 25th February 2021, superseding the previous 2011 guidelines.  
• These rules came into effect for significant intermediaries on 26th May 2021, and were developed in response to growing concerns about social media abuse and digital platform misuse.

What are the Amendments to Rule 3 of IT Rules? 

• 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. 

What is Rule 3(1)(b)(V) of IT Rules? 

• Rule 3(1)(b)(V) of IT Rules states the rules for Due diligence by an intermediary. 
• It states that the intermediaries need to ensure a list of criteria given while performing their duties and the intermediaries also includes social media intermediaries under this rule. 
• The specific rules obliges intermediaries to ensure that the the rules and regulations, privacy policy or user agreement of the intermediary shall inform the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that is in violation of any law enforced in India.