The Bombay High Court on Monday extended by another two weeks the pronouncement of its verdict in connection with the pleas filed by stand-up comedian Kunal Kamra and others challenging the 2023 amendment of Information Technology (IT) Rules for Intermediaries. The verdict was expected on Monday (January 15). It will now be delivered on January 31, according to reports.
In April 2023, the Ministry of Electronics and Information Technology (MeitY) notified the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Rules 2023). According to the new IT rules (2023), the government can ask social media intermediaries (like Facebook, Twitter, etc.) to remove any news related to the ‘business of the Central Government’ that was identified as ‘fake, false, or misleading’ by a fact-checking unit established by the Central government. Political satirist and comedian Kunal Kamra moved a writ petition in the High Court against this provision in the new IT Rules.
According to Kamra's petition, the new IT Rules 2023 are in conflict with Section 79 of the Information Technology Act, 2000 (IT Act) and the Supreme Court's judgment in Shreya Singhal v Union of India (2015) case.
Read here: Explainer on Kunal Kamra Case In Bombay HC And The New IT Rules His Petition Challenges
Kamra has challenged the new IT Rules 2023, saying that they have enabled the Centre to avoid court, and act as both the ‘Judge and the Prosecutor’.
He challenged the rules for being in deviation from the prescribed procedure in Section 79 of the IT Act. The said section is a provision that protects social media intermediaries from liability for content posted by users. Under Section 79(3), the social media intermediaries must remove content when asked by the Centre. However, Kamra has said that according to the Shreya Singhal judgment the Centre can issue such notifications only through a court order.
Kamra challenged the rules on the grounds that they are violative of Article 14, 19(1)(a) and 19(1)g of the Constitution. He has described the rules as contrary to the principles of natural justice and restrictive of freedom of speech.
In the Shreya Singhal judgment, Section 66A of the IT Act was struck down by the apex court because it suffered from the ‘vice of vagueness’. Kamra has challenged the phrase ‘business of the Central Government’ in the IT Rules 2023 for being ‘overbroad and vague’. According to his petition, these restrictions on speech by the government crosses the scope of reasonable restrictions to freedom of speech under Article 19(2).
He raised concern that such vague restrictions would restrict the users on social media from expressing themselves freely on these platforms. And social media intermediaries might opt to remove information to avoid the risk of losing their ‘safe harbour’ protection.
Kamra has further challenged the IT Rules 2023 for violating his right to carry out his profession as a political satirist under Article 19(1)(g). Kamra has expressed fear of his content being hand-picked by the Centre's ‘fact check’ unit, potentially leading to the loss of his social media access.
He has also raised concern over lack of provision for a grievance redressal cell, or any such platform to appeal the flagging or removal of any content by an intermediary.
The Centre, in its reply, called Kamra’s petition ‘premature’. They submitted that the new IT rules were issued in ‘public interest’ to prevent the spread of fake news. They also said that the fact-checking will be done on the basis of evidence and the aggrieved persons can approach a Court if their information or content is flagged and taken down.
The challenge was heard in the Bombay High Court by a Division Bench Bench comprising Justices Gautam Patel and Neela Gokhale. A separate petition was filed by The Association of Indian Magazines (AIM) and Editors Guild of India challenging the IT Rules 2023 in the Bombay High Court.