‘Can’t Bring Hammer To Kill Ant’: Bombay HC Says IT Rules on 'Fake' News May Be Excessive

‌The rules require social media intermediaries to censor, modify or even take down content flagged by the FCU. That the unit has been given a wide berth to determine what is “fake news” has concerned media associations, which say the powers may be misused to restrict even legitimate criticism of the government.

The bench of Justices Gautam Patel and Neela Gokhale, which is hearing the petitions, also orally remarked that the government is not a “repository of truth that cannot be questioned”. According to LiveLaw, Justice Patel said

“In a democratic process, the essence of which is discourse, government itself is a participant. It is not repository of truth that cannot be questioned. Forget the fundamental right to lie, it is the citizens right to doubt, question the government and it has to answer. This power here [of FCU], it’s very difficult”.

The judge also wondered “who will fact-check the FCU”, adding that if the Press Information Bureau posts some news which is fake, the rules do not provide for any action.

According to The Hindu, the court also remarked that it could not understand the concern that necessitated the amendment. “What is the anxiety behind it? What was the need? I still don’t know,” the bench said.

Advocate Gautam Bhatia, who is representing the Association of Indian Magazines, asked, “Does the constitution authorise the government to classify speech based on values? Does the constitution authorise the government to arbiter what is true and false? Are the impugned amendments intra vires the parent statute? The answer to all is no.”

Senior advocate Arvind Datar drew the court’s attention to the lack of a clear definition of “fake and misleading”. “I want to know what the boundary is. I do not know what is being tested under Article 19(2) of the Constitution,” the court responded.

‌The rules require social media intermediaries to censor, modify or even take down content flagged by the FCU. That the unit has been given a wide berth to determine what is “fake news” has concerned media associations, which say the powers may be misused to restrict even legitimate criticism of the government.

The bench of Justices Gautam Patel and Neela Gokhale, which is hearing the petitions, also orally remarked that the government is not a “repository of truth that cannot be questioned”. According to LiveLaw, Justice Patel said

“In a democratic process, the essence of which is discourse, government itself is a participant. It is not repository of truth that cannot be questioned. Forget the fundamental right to lie, it is the citizens right to doubt, question the government and it has to answer. This power here [of FCU], it’s very difficult”.

The judge also wondered “who will fact-check the FCU”, adding that if the Press Information Bureau posts some news which is fake, the rules do not provide for any action.

According to The Hindu, the court also remarked that it could not understand the concern that necessitated the amendment. “What is the anxiety behind it? What was the need? I still don’t know,” the bench said.

Advocate Gautam Bhatia, who is representing the Association of Indian Magazines, asked, “Does the constitution authorise the government to classify speech based on values? Does the constitution authorise the government to arbiter what is true and false? Are the impugned amendments intra vires the parent statute? The answer to all is no.”

Senior advocate Arvind Datar drew the court’s attention to the lack of a clear definition of “fake and misleading”. “I want to know what the boundary is. I do not know what is being tested under Article 19(2) of the Constitution,” the court responded.

‌The rules require social media intermediaries to censor, modify or even take down content flagged by the FCU. That the unit has been given a wide berth to determine what is “fake news” has concerned media associations, which say the powers may be misused to restrict even legitimate criticism of the government.

The bench of Justices Gautam Patel and Neela Gokhale, which is hearing the petitions, also orally remarked that the government is not a “repository of truth that cannot be questioned”. According to LiveLaw, Justice Patel said

“In a democratic process, the essence of which is discourse, government itself is a participant. It is not repository of truth that cannot be questioned. Forget the fundamental right to lie, it is the citizens right to doubt, question the government and it has to answer. This power here [of FCU], it’s very difficult”.

The judge also wondered “who will fact-check the FCU”, adding that if the Press Information Bureau posts some news which is fake, the rules do not provide for any action.

According to The Hindu, the court also remarked that it could not understand the concern that necessitated the amendment. “What is the anxiety behind it? What was the need? I still don’t know,” the bench said.

Advocate Gautam Bhatia, who is representing the Association of Indian Magazines, asked, “Does the constitution authorise the government to classify speech based on values? Does the constitution authorise the government to arbiter what is true and false? Are the impugned amendments intra vires the parent statute? The answer to all is no.”

Senior advocate Arvind Datar drew the court’s attention to the lack of a clear definition of “fake and misleading”. “I want to know what the boundary is. I do not know what is being tested under Article 19(2) of the Constitution,” the court responded.