A case of nothing but patent censorship

• On September 20, 2024, Justice A.S. Chandurkar of the Bombay High Court resolved a split verdict by ruling against an amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules)..

The Contested Provision

Rule 3(1)(b)(v):

• Imposed an obligation on intermediaries (e.g., ISPs, social media platforms) to avoid hosting content flagged as fake, false, or misleading by the government’s Fact Check Unit (FCU).
• Non-compliance would lead to intermediaries losing their “safe harbour” protections under the IT Act, 2000, making them liable for third-party content.

Court’s Decision and Reasoning

Violation of Free Speech:

• The High Court found Rule 3(1)(b)(v) unconstitutional for violating the right to free speech under Article 19(1)(a) of the Constitution.
• Justice Chandurkar emphasized that the rule imposed an undue burden on intermediaries, creating a chilling effect on free expression.

Intermediaries’ Dilemma:

• Intermediaries faced a Hobson’s choice: comply with the government’s directive and censor user content or risk losing immunity from liability, thereby threatening their business operations.

Legitimate State Interest vs. Constitutional Boundaries:

• While acknowledging the state's legitimate interest in combating fake news, the court stressed that any measures taken must align with constitutional limits.
• The rule’s broad and vague language failed to meet the necessary standards for restricting free speech, as outlined in Article 19(2).

Arguments and Counterarguments

Petitioners' Argument:

• The rule allowed the government to unilaterally determine the veracity of content, disregarding less intrusive alternatives.
• The rule was seen as overbroad, vague, and disproportionate, chilling free speech and undermining equal treatment.

Union Government's Defense:

• Argued that the rule was non-coercive, allowing intermediaries to contest directives in appropriate proceedings.
• Asserted that false and misleading speech is not protected under the Constitution, thus justifying the rule.

Judicial Opinion Split:

• Justice G.S. Patel: Found the rule ultra vires, emphasizing its chilling effect and disproportionate impact on free speech.
• Justice Neela Gokhale: Argued that loss of safe harbour did not directly infringe on free expression rights.

Justice Chandurkar’s Tie-Breaking Opinion:

• Sided with Justice Patel, highlighting the critical importance of safe harbour for intermediaries and the chilling effect of the rule.
• Legal Framework and Safe Harbour

Section 79 of the IT Act, 2000:

• Provides intermediaries immunity from liability for third-party content if they exercise due diligence.
• Immunity is lost if intermediaries have “actual knowledge” or receive communication from a government agency about illegal content.

Importance of Safe Harbour:

• Allows platforms like Facebook, X, and WhatsApp to function without the liabilities of traditional publishers.
• Essential for promoting free speech by protecting intermediaries from undue pressure to censor user content.

Conclusion

Impact of the Ruling:

• The High Court’s decision reaffirms the protection of free speech on the Internet.
• It emphasizes that the government cannot act as the ultimate arbiter of truth, especially concerning its own actions.

Constitutional Safeguards:

• Free speech is a cornerstone of democracy, protected by Article 19(1)(a) with specific, narrow exceptions under Article 19(2).
• The ruling underscores the need for any restrictions on speech to be explicitly sanctioned within these constitutional parameters.