The Bombay High Court has raised concerns over the boundaries and definition of what is considered fake, false, or misleading under a new rule introduced by the Central government. The court was hearing a petition filed by comedian Kunal Kamra, who is challenging the constitutional validity of the rule that allows the government to establish fact check units to combat misinformation online. The court questioned the unbounded discretion of authority granted to the government to determine what content falls under these categories.
The High Court expressed its concern regarding the authority and wording of the rule, seeking clarification on the limits and boundaries of what constitutes fake or misleading content. The court also questioned the source of power that would grant the fact check unit the authority to make such determinations. Kamra’s counsel argued against broad censorial powers and highlighted the importance of constitutional protection even for falsehoods, citing a decision by the US Supreme Court.
The rule under scrutiny is rule 3 (1) (b) (V) of the Intermediary Guidelines and Digital Media Ethics Code) Rules, which was amended in April this year. It pertains to the due diligence of intermediaries, such as social media platforms, in preventing the spread of deceptive or misleading information. The rule states that intermediaries should not host or share any content that deceives or misleads the recipient, communicates misinformation, or is identified as fake or false by the fact check unit of the Central Government.
The High Court also expressed uncertainty about the scope of the term business of the Central government. The Centre’s response stated that it includes all executive decisions and appointments referred to in Articles 77 and 78 of the Constitution. The court raised concerns about the imprecision of terms such as fake and misleading, especially in cases where the content can be seen as an opinion rather than a factual claim. The court sought clarification on the boundaries and limitations of these terms.
During the hearing, the court mentioned the possibility of requiring social media platforms to carry counter views from the government as clarifications to protect them from losing their safe harbor status. Kamra’s counsel stated that he would need to consider this proposal before responding. The court acknowledged the Centre’s anxieties and concerns expressed in their affidavit and suggested considering less intrusive methods for addressing these concerns.
The hearing will continue next Thursday, as the court seeks clarity on the boundaries and definitions of terms used in the rule.
