MUMBAI: Under the new Fact Check Unit (FCU) rule, the “government is not supposed to be the final arbiter or decision maker’’ on whether any content online is patently untrue, false or misleading, said the Centre in its fresh affidavit before the Bombay high court on Tuesday. The obligation, first, is on the intermediary to “exercise due diligence’’ to conclude based on identification of the FCU and failing this the final arbiter is the court of law whether any content is false and has been intentionally posted and the final consequence can be removal of such content.
The Centre said while framing statutory regulations it is obligated to balance the competing interests and rights of not only those who use their freedom of expression by posting information but also the fundamental freedom of those who receive the information and “potential mischief such transmitted content is capable of causing if what is knowingly and intentionally displayed, uploaded, published, transmitted, store or shared is either misleading or patently false or untrue,’’ said the affidavit.
The new rule essentially is to protect the fundamental rights and interests of those who receive “untrue” information and aims to “harmoniously balance’’ both, interest of creator of content and recipient, said the Centre as it “merely allows’’ such recipient to approach the grievance redressal mechanism of an intermediary first and the court later to have such content removed on the ground that the “intentionally misleading and patently false content” caused him or her harm.
The Centre said, “The only change the rule (under challenge) makes is to make the intermediary preliminarily responsible to check what is stated, without any obligation to either take it down or block it.’’ Essentially that the “intermediary would not be permitted to get away by using the protective shield of section 79” of the IT Act.
Seeking to justify the new rule and explaining its scheme, the affidavit said, whenever intentionally displayed allegedly fake content pertaining to the central government actions, schemes, data, policies etc comes to the notice of the FCU it will examine its “truthfulness’’. “If found to be untrue, there is no consequence except that of making a widely disseminated public announcement that such content is either fake or false’’ to enable intermediary to conduct its due diligence. Once the intermediary is aware of the content it has a “sole discretion’’ to either prevent its spread or to continue to host with a “disclaimer’’ of its being found to be fake by the FCU of the Central Government. A person if aggrieved or harmed by such “fake’ content can approach the grievance cell of the intermediary for action and eventually approach the court.
“The Government is committed to the rule of law and has a constitutional obligation of controlling
public mischief …public order situation or harm being caused to any individual and protecting national security, and is entitled and empowered by section 79(2)(c) of the Information
Technology (IT) Act, 2000 to mandate the intermediary to have an inbuilt system…to check that no misinformation or patently false and untrue facts or
misleading information are knowingly and intentionally displayed, uploaded, published, transmitted, stored or shared on its platform,’’ and added at present, “it is most important to note that irrespective of whether or not the intermediary chooses to have such a system or not and whether or not even after finding out through such system [if created by the intermediary] that something knowingly and intentionally displayed, uploaded, published, transmitted, stored or shared on its platform is either misleading or factually and patently false and untrue, the intermediary is under no obligation to take it down or block access to it.’’
The Centre said, has not notified the FCU contemplated in rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as amended on April 4, 2023 by the Ministry.
The HC bench headed by Justices Gautam Patel had on April 26 directed the Centre to file a detailed reply and will in June 8 decide on a date when the matter will be finally heard since Kamra’s plea for interim relief to stay the FCU rule would also require a detailed hearing.
Kamra is not a person personally aggrieved said the Centre’s affidavit adding that based on “records “ he has “scant regard for judiciary and judicial process.’’
Justifying the amended rule, the reply also said that among various reasons, there was a “compelling need to have a framework to deal with fake or hate messages which have become viral and have resulted in riots, mob lynching or other heinous crimes including those concerning dignity of women and sexual abuse of children.”
The Centre said, “Wrong decisions and actions taken by the citizenry based on false, untrue and deceptive information results in very deleterious consequences in the society and perpetrates civil or criminal wrong, capable of destroying the body polity, and societal harmony and endangering national security.’’
The Centre said while framing statutory regulations it is obligated to balance the competing interests and rights of not only those who use their freedom of expression by posting information but also the fundamental freedom of those who receive the information and “potential mischief such transmitted content is capable of causing if what is knowingly and intentionally displayed, uploaded, published, transmitted, store or shared is either misleading or patently false or untrue,’’ said the affidavit.
The new rule essentially is to protect the fundamental rights and interests of those who receive “untrue” information and aims to “harmoniously balance’’ both, interest of creator of content and recipient, said the Centre as it “merely allows’’ such recipient to approach the grievance redressal mechanism of an intermediary first and the court later to have such content removed on the ground that the “intentionally misleading and patently false content” caused him or her harm.
The Centre said, “The only change the rule (under challenge) makes is to make the intermediary preliminarily responsible to check what is stated, without any obligation to either take it down or block it.’’ Essentially that the “intermediary would not be permitted to get away by using the protective shield of section 79” of the IT Act.
Seeking to justify the new rule and explaining its scheme, the affidavit said, whenever intentionally displayed allegedly fake content pertaining to the central government actions, schemes, data, policies etc comes to the notice of the FCU it will examine its “truthfulness’’. “If found to be untrue, there is no consequence except that of making a widely disseminated public announcement that such content is either fake or false’’ to enable intermediary to conduct its due diligence. Once the intermediary is aware of the content it has a “sole discretion’’ to either prevent its spread or to continue to host with a “disclaimer’’ of its being found to be fake by the FCU of the Central Government. A person if aggrieved or harmed by such “fake’ content can approach the grievance cell of the intermediary for action and eventually approach the court.
“The Government is committed to the rule of law and has a constitutional obligation of controlling
public mischief …public order situation or harm being caused to any individual and protecting national security, and is entitled and empowered by section 79(2)(c) of the Information
Technology (IT) Act, 2000 to mandate the intermediary to have an inbuilt system…to check that no misinformation or patently false and untrue facts or
misleading information are knowingly and intentionally displayed, uploaded, published, transmitted, stored or shared on its platform,’’ and added at present, “it is most important to note that irrespective of whether or not the intermediary chooses to have such a system or not and whether or not even after finding out through such system [if created by the intermediary] that something knowingly and intentionally displayed, uploaded, published, transmitted, stored or shared on its platform is either misleading or factually and patently false and untrue, the intermediary is under no obligation to take it down or block access to it.’’
The Centre said, has not notified the FCU contemplated in rule 3(1)(b)(v) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as amended on April 4, 2023 by the Ministry.
The HC bench headed by Justices Gautam Patel had on April 26 directed the Centre to file a detailed reply and will in June 8 decide on a date when the matter will be finally heard since Kamra’s plea for interim relief to stay the FCU rule would also require a detailed hearing.
Kamra is not a person personally aggrieved said the Centre’s affidavit adding that based on “records “ he has “scant regard for judiciary and judicial process.’’
Justifying the amended rule, the reply also said that among various reasons, there was a “compelling need to have a framework to deal with fake or hate messages which have become viral and have resulted in riots, mob lynching or other heinous crimes including those concerning dignity of women and sexual abuse of children.”
The Centre said, “Wrong decisions and actions taken by the citizenry based on false, untrue and deceptive information results in very deleterious consequences in the society and perpetrates civil or criminal wrong, capable of destroying the body polity, and societal harmony and endangering national security.’’