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No Mandatory Content Removal for Social Media Platforms upon Fact-Check Unit Flagging: Govt

September 27, 2023
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MUMBAI: In a significant legal development, the Bombay High Court heard arguments from the Centre regarding its fact-check unit (FCU) rule, designed to combat the spread of fake, false, and misleading information related to central government affairs on social media platforms. Solicitor General Tushar Mehta represented the government during the proceedings.

During the hearing, the Bombay High Court raised several critical questions and urged Mehta to seek further input from government officials. One of the key points of contention was whether social media intermediaries have the option to refrain from taking action when they receive communication from the FCU.

Mehta asserted that social media intermediaries are not obligated to comply with FCU directives to remove or delete content identified as ‘fake or false.’ Instead, he argued that if an intermediary chooses not to act, the matter can be taken to a judicial court, which will serve as the final authority to determine the appropriateness of the content. Importantly, such non-compliance would not automatically result in the loss of safe harbor protection for intermediaries.

At the conclusion of the hearing, the judges asked the Centre to reconsider the necessity of the FCU if it places no mandatory obligations on content carriers who may receive flags from the FCU. The court noted that the Press Information Bureau’s fact-check unit continues to operate to identify and flag false content unless the new amendment has been introduced specifically to compel compliance.

The legal proceedings stem from petitions filed by various entities, including stand-up comedian Kunal Kamra and the Editors Guild of India, challenging the constitutionality of the rule that empowers the Centre to establish the FCU. This FCU is an integral part of the Intermediary Guidelines and Digital Media Ethics Code Rules, which were amended in April, falling under the purview of the Information Technology (IT) Act.

During the hearing, Mehta emphasized the necessity of the rule to regulate the internet, where information can spread globally within seconds. He contrasted this with print and TV media, which are subject to established rules and norms. Mehta argued that while the FCU rule is not a penal provision, it does not seek to criminalize individuals or actions. He further asserted that the right to receive correct information is a fundamental right, emphasizing that “false speech” does not enjoy constitutional protection.

Justice Patel, addressing the issue, indicated that the FCU rule does not necessarily curb free speech but rather limits the exercise of powers to content directly related to government affairs. Additionally, he stressed that the FCU must inform intermediaries of “false or fake content” for there to be any obligation on their part to comply, to which Mehta agreed.

Towards the end of the proceedings, Justice Patel inquired about the Supreme Court’s interpretation of the IT Act provisions in the Shreya Singhal case. Mehta explained that the Supreme Court was dealing with a criminal provision in that case, which necessitated precision in interpretation. The judge also raised questions regarding the IT Act’s definitions of ‘information’ and ‘data,’ to which Mehta committed to addressing in subsequent proceedings, scheduled for Wednesday.

The Bombay High Court’s deliberations on the FCU rule continue, with the outcome expected to have far-reaching implications for social media content regulation in India.

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