The Bombay High Court has deferred its verdict regarding the challenge to Rules 3(i)(II)(A) and (C) of the IT Amendment Rules, 2023. These rules require social media intermediaries, such as 'X', to exert "reasonable efforts" to prevent users from disseminating information related to the government's affairs, flagged by the Fact Check Unit as fake, false, or misleading.

The division bench, consisting of Justices Gautam Patel and Neela Gokhale, is currently handling the petitions filed by political satirist Kunal Kamra, the Association of Indian Magazines, the News Broadcasters of Digital Association, and the Editor's Guild of India.

The petitioners contend that the two rules are beyond the powers granted by Sections 79 and 87(2)(z) & (zg) of the IT Act 2000, and they infringe upon fundamental rights given in Article 14, 19(1)(a), and 19(1)(g) of the Constitution of India.

Kunal Kamra, one of the petitioners, asserts that as a political satirist, he heavily relies on social media platforms to disseminate his content. He expresses concern that the implementation of the Rules may result in the arbitrary blocking, removal, or suspension of his social media accounts, thereby impinging on his ability to share his content.

Previously, the bench noted that the recent amendment to the IT Rules 2023 appears, at first glance, to lack the essential safeguards needed to protect the practice of satire.

Nevertheless, the Ministry of Information and Technology has asserted that ensuring "authentic information" through fact-checking by a government agency (FCU) and its subsequent dissemination would be in the public interest. The Ministry argues that this process is essential to contain potential harm to the public at large.

During the proceedings, Solicitor General Tushar Mehta cleared that intermediaries like Facebook, X, Instagram, etc are not at liberty to do “nothing” about content flagged as fake, false, or misleading by the Fact Check Unit. If a social media or news website continues to host information the government's FCU has flagged as 'false' or'misleading', it will have to defend itself before a court if action is taken. The intermediary could lose the safe harbor defined under Section 79 of the IT Act. But the final arbiter was the court.

In their rejoinder, the petitioners argued that intermediaries merely have an "illusion" of choice once the government flags something. According to Advocate Gautam Bhatia, anything less than the removal of content, even the placement of a disclaimer, exposes the intermediary to potential legal action.

Senior Advocate Navroz Seervai, representing Kunal Kamra, highlighted the absence of adequate remedies for users in case their content is flagged by the FCU as fake, false, or misleading. He argued that in such instances, the central government serves as the sole arbiter, leaving users with no recourse except through a writ petition.

Senior Advocate Arvind Datar, representing the News Broadcasters and Digital Association, challenged the government's claim that the FCU operates in an advisory capacity. He countered by stating, "The SG tried to argue that the FCU is an advisory. It's not a travel advisory. It is a binding dictat and order." Datar emphasized that the FCU's role goes beyond mere advice and carries the weight of binding directives.

Case no. – WP(L)/9792/2023

Case Title – Kunal Kamra v. Union of India