Mumbai high court was instrumental in initiating the Section 66A removal from ITA 2000 in the Palghar girl’s case due to a wrong interpretation of the section.
A situation has come now where the petition of Mr Kunal Kamra is before the High Court and it is being pressed for immediate decision citing some urgency that “Free Speech in India is under threat”.
In the Palghar case, two girls who had “Liked” a FaceBook post were arrested by the Police and the issue under scrutiny in the Court was whether the “Clicking of the Like” button was equivalent to endorsing the view in the Post and also whether the Post was defamatory warranting an arrest of the two girls. The case got traction because the affected parties were Muslims and went all the way to Supreme Court which held that the arrest followed the Section 66A and had a chilling effect on freedom of expression an ordered the removal of the entire section without even making an attempt to “Read Down”.
A similar trigger happy situation is building up in the current case and a wrong decision may be made by the Court and it may issue at least an interim stay creating a wrong perception. Such a decision will put the Court under low light as ignorant of the law.
In the interest of preserving the reputation of the Court, it is necessary for us to highlight that the Intermediary Guidelines does not amount to a damage to the right to freedom of expression and the petition is based on a malicious propaganda.
I have explained the reasons in my previous articles and does not need a repetition.
However, I would like to highlight an article that has appeared today in Business Standard reproduced below.
Please note the article towards the end, lists the French and Australian Laws to a similar effect.
I urge the Government to take note of the International efforts to bring credibility to the media by weeding out Fake News and ensure that the Court does not come in the way of the efforts in this direction. If the Court allows the petition of Mr Kunal Karma it will indicate that the High Court is making a mistake similar to the Palghar Case and create a wrong precedence.
I wish lawyers in Mumbai bring this to the notice of the Court so that justice does not remain blind to the actual fact.
In order to bring clarity to the impact of the Intermediary Guidelines on the activities of any Intermediary, we seek the views of all Cyber Law Aware professionals to take a few minutes to answer the 10 point poll below.
I will be happy if you can comment on this article indicating how many responses are true? which are false? and Why?
If possible, we shall send this survey result to the Mumbai High Court which will be hearing the petition of Mr Kunal Kamra. The High Court has sought an affidavit from the Government before April 19 to rule on the constitutional validity of the rule.
The ruling on this petition upholding the petition will have the effect of removing “Defamation” from the laws in India and will give a free license to any body to utter falsehood in the Social Media and any expectation of discipline in public speech would amount to “Self Censorship” and curtailment of “Freedom of Expression”.
In effect any ruling in favour of the petitioner would provide him immunity against Sections 499/500 of IPC.
We feel that such a decision is ultra vires the powers of the High Court as it will create a privileged position for Mr Kunal Kamra in law.
If upheld, every citizen of India will not only be free to make fun of every other person but also make fun of Courts or Judges because that also would be “Free Speech”.
Such a decision would create chaos in the Societyand create a law and order situation in the country.
Hence the consequences of a hurried decision in this case including an interim stay would be considered as damaging the fabric of natural justice to the society.
I would like the Court to consider that the society is not an aggregation of criminals whose rights to free speech needs to be protected. Society is also an aggregation of honest peace loving citizens who are in larger numbers who have a right to truthful news.
Hence the Right of that part of the society which gets annoyed and disturbed by falsehood is as much important as the rights of the few stand up comedians who may be activists trying to use “Comedy” as a cover for their activism.
I request Cyber Law Specialists to give their views on the following questions:
Background:
Intermediary Guidelines issued under Section 79 of ITA 2000, Part II, Rule number 3(1)(b) states “the intermediary shall inform its rules and regulations, privacy policy and user agreement to the user…and shall make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that,— ..deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature 1[or is identified as fake or false by the fact check unit at the Press Information Bureau of the Ministry of Information and Broadcasting or other agency authorised by the Central Government for fact checking or, in respect of any business of the Central Government, by its department in which such business is transacted under the rules of business made under clause (3) of article 77 of the Constitution];
Based on the above the following interpretations follow:
Number
Question
Answer
1
The obligation of the Intermediary is to keep the user informed about the Do’s and Dont’s in the interest of the society
True/False
2
Reasonable efforts mean that the notice is prominently displayed and an affirmative confirmation is obtained from the user.
True/False
3
Take reasonable efforts to cause the user not to host, display, upload modify, publish, transmit, store, update, or share information does not mean forced taking down of content
True/False
4
Sub section 3 (1) (b)(v) means that the notification should include that the user does not intentionally communicate any misinformation which is patently false and untrue or misleading
True/False
5
Sub section 3 (1) (b)(v)means that the published policy and Terms of Service should include a note that the user does not intentionally communicate any misinformation which is identified as fake or false by the fact check unit at the Press Information Bureau of the Ministry of Information and Broadcasting or other agency authorised by the Central Government for fact checking or, in respect of any business of the Central Government, by its department in which such business is transacted under the rules of business made under clause (3) of article 77 of the Constitution
True/False
6
Sub section 3 (1) (b)(v) does not mean that the Factcheck unit to be appointed by the Government will issue Takedown notices
True/False
7
The FactCheck Unit at the Press Information Bureau or other agency authorized by the Central Government is primarily meant for fact checking in respect of any business of the Central Government
True/False
8
The FactCheck Unit at the Press Information Bureau or other agency authorized by the Central Government may be entrusted with the fact checking also in respect of any private website
True/False
9
The FactCheck can be clarified even by departments of the Government in respect of their specified business
True/False
10
The FactCheck unit presently run as a Twitter Hashtag #PIBFactCheck or any new unit to be designated under the guideline does not bar any other organization to run a similar service in the private sector.
Mr Rajeev Chandrashekar, MOS, MeitY in a recent interview, has reiterated that large part of misinformation in the media is against the Government and hence there is a need for a Government factcheck body which has been indicated in the recent Intermediary Guidelines.
The Editor’s Guild press note which has been widely circulated and supported by the Internet Freedom Foundation however implies in its communications to the effect that …
“The FactCheck unit proposed by the Government as part of PIB will issue take down notices and cause a chilling effect on the freedom of information”.
Taking a cue from this, a case has been filed in the Mumbai High Court that the notification is unconstitutional and has to be withdrawn. Without further verification, the High Court has proceed to register the case and issue notices.
To make it clear to all, I would like to state that :
The Intermediary guidelines only make it obligatory for Intermediaries to publish a notice, which in turn mandates its users not to post fake information on the user’s content space. It does not mandate take down of the content.
When the user is having a notice of the content being flagged as false because of the FactCheck publication or otherwise, it is left to his discretion to either retain the content or remove it.
The consequence of continuing to keep such content and not removing it or not providing a rejoinder, is that the user would be liable to be charged in a Court of law by any affected party.
If the misinformation is about the Government, then the affected party is the Government and it would either approach the Committee under section 69A of ITA 2000 or a Court for direction on the removal of the offensive content.
Public are also free to approach Section 69A authority instead of the Court at his choice.
The takedown obligation arises for the intermediary only whes such a competent body issues a notice to the Intermediary to take down the content either permanently or temporarily.
When an order is issued by a Court or a Competent authority, the matter is already under scrutiny of a judicial body and it is open to the Intermediary to Challenge the takedown order by representing itself as a party to the dispute.
If it takes such a stand, it would mean that it takes ownership of the content and defends it to the effect that “The content is true and the platform supports the user. Also it implies that the platform’s content check team is satisfied that the FactCheck is itself incorrect and hence the platform would not take down the material”.
Such a contention has been taken earlier by Twitter though it means that the platform is challenging a Judicial or a Quasi judicial or a Competent authority of the Government.
I wonder why the Editor’s Guild and more so the Internet Freedom Foundation is falsely interpreting the guideline and it’s fake view is being parroted by other publications including INS. This only appears to be a conspiracy to create a false narrative and mislead the public. Such organizations irrespective of their name associated with the media needs to be brought to book for their own misinformation campaign.
I wish that members of the Editor’s Guild and INS review their decision and come up with an apology for their mistake.
I also urge the Mumbai High Court to call out this fraud of a section of media when the Court takes the petition filed by the stand-up comedian (Kunal Kamra). It should also impose a stiff penalty on the petitioner for a speculative case.
The Court has the opportunity to consult Cyber Law Experts in Mumbai and understand the true import of Section 79 and the status of Intermediary Guideline as a suggestion to the Intermediary to notify the User to do or not do some thing.
If the Court is satisfied that the contention provided in this article is correct, it should state in its order that the Court is satisfied that the Intermediary Guideline does not amount to a take down order or causing a Chilling effect on the freedom of expression.
The Mumbai High Court was once wrong in the Palghar Girl’s FaceBook case where it ruled the “Publication” wrongly as a “Message” and came to the conclusion that Section 66A was an affront to the Freedom of Expression which finally got endorsed by the Supreme Court as Shreya Singhal Judgement and resulted in the deletion of Section 66A which was not a section related to publishing but was related to a Message (SMS or E Mail).
At the time Palghar Girl’s case was adjudged and Shreya Singhal judgement came out, (and even now), ITA 2000 did not have any restrictions on the publication of such messages. It had only restrictions related to publication of a content which was “Obscene” under Section 67,67A and 67B. Any publication of a content which was defamatory or otherwise false etc was not covered by Section 67 and hence could be challenged only under provisions of IPC. Section 66A was a section which addressed a pointed attack through a message on a person who could be threatened or annoyed etc., who could invoke relief under Section 66A through prosecution. This had no relation to “Public Speech” and hence the contention that it caused a “Chilling effect on Freedom of Expression was wrong”.
(PS: In the current context of the Intermediary guidelines, the Shreya Singhal case has been quoted for a different reason namely the upholding of Section 79 (1) and 79 (2) of ITA 2000/8 and reading down of 79(3))
I wish some of the Cyber Law Experts in Mumbai would implead in the suit and provide the necessary clarification to the Court even if the Government fails to do so effectively.
[P.S. This is a continuation of the articles on the subject. Other recent articles can be found in the link given at the end of the articles]
Amidst the politicisation of the announcement by the Government about the desire to introduce a system for FactCheck in Social Media reporting, particularly against false information about the Government, we note an article in .. leaflet.in which comes to a conclusion
“in effect, a fact-check serves as a de-facto takedown order minus the processes associated with one, which already lacks adequate transparency. The ambiguity of terms such as ‘fake’, ‘false’ or ‘misleading’ coupled with the conflict of interest with having a designated unit appointed by the executive deciding what about the Union government is true or false, makes these amendments highly likely to be misused.
“Further, it is probable that to avoid liability, a range of intermediaries will mechanically comply irrespective of the quality and accuracy of the fact checks”,
“The amendment impermissibly restricts the safe harbour guaranteed to intermediaries by predicting the safe harbour on the takedown of content identified by this fact check unit as fake, false or misleading.
“The intermediary will not lose safe harbour the moment content is declared as fake, but only if the intermediary does not remove such content when ordered by the Ministry. Nevertheless, this goes against the parent act which does not include ‘fake or false or misleading’ as grounds under which online content may be ordered to be taken down.”
This article quotes the views of Mr Parteek Waghre, policy Director at IEF and makes reference to the letter written by Indian News Paper Society to the MeitY as well as the press release of the Editor’s Guild.
Mr Waghre goes on to say “Assigning any unit of the government such arbitrary, overboard powers to determine the authenticity of online content bypasses the principles of natural justice, thus making it an unconstitutional exercise. The notification of these amended rules cement (sic) the chilling effect on the fundamental right to speech and expression, particularly of news publishers, journalists, activists, etc.“
It is unfortunate that a speculative narrative is being built and is being propagated by vested media interests and we need the public to realize that these views are biased and need to be rejected.
The leaflet article states that “The factchecking unit is likely to have four members: a representative from the Union Ministry of Information and Broadcasting, one from the Union Ministry of Statistics and Programme Implementation, a media expert and a legal expert.”
As usual, the article does not quote the name of this media expert and a legal expert who had the inside information of the four member committee since the MeitY has not come up with any public information about it. If this legal and media expert is privy to the inside scoop from MeitY then he would probably be an influencer himself.
As could be expected, a petition has been filed in Mumbai High Court by a so called “Standup comedian” and in an attempt to create a TRP Judicial News, the Court has been pleased to issue a notice to the Union Government to hear the case on April 21, 2023.
Our first question is for the Mumbai High Court bench of Judges G S Patel and Neela Gokhale to file a reply and disclose the factual background that necessitated the amendment. It has asked the Government to submit its response on why the amendment should not be stayed by the Court. It appears that the probability of the Court issuing a stay is high.
We wonder why the Court should acted even before the Government actually sets up a FactCheck body and announces its constituents and the body comes up with the first 5 or 10 FactCheck reports.
Let us set aside the speculative narrative of “Chilling effect” etc and look directly at the actual amendment made.
The Intermediary Guidelines are a “Due Diligence Guideline” issued under Section 79 of ITA 2000 which the Supreme Court has upheld during the Shreya Singhal Judgement. The effect of the guideline is that an intermediary which does not follow the guideline will not get protection against liability arising out of any content published when challenged in a Court and when directed by a Court or a Competent authority is obliged to take down the designated content expeditiously. (not later than 36 hours).
Section 79 is not a “Penal Section” prescribing any penalty and the liability will arise only if the designated content can be proved to actually result in a damage which the Court upholds after a trial.
Even when a take down notice is issued, the intermediary can refuse to take down the information and wait for some body to launch judicial proceedings against it or go to the Court itself seeking an intervention of the Court for directions why the notice should be squashed.
Hence a factcheck report on a PIB website is not a “De-facto” take down notice. At best it can be the first and public notice that a particular publication is wrong. If the concerned media is responsible and committed for truth, it can conduct its own investigation and call out the fact check report itself as wrong. In many cases the truth would be some where in between and it could the headline of an article that can be misleading or there could be lack of information leading to a wrong conclusion. These can be corrected without an acrimonious Court battle.
Hence the cry of “Chilling Effect” is patently false, misleading and also mischievous. The petition indicates a malicious intention of defaming the Government of the day and preventing it from discharging it’s routine functions.
As a Citizen of the Country also protected or supposed to be protected under the Constitution and expecting the Courts to uphold my rights as a Citizen of the Country, I consider that there is a dire need for the Government to check the spread of Fake News in the media.
Recently, there was a report about a false news on Madurai Court granting relief to an accused which was perhaps in-correct. The judiciary itself has often expressed its concerns on the fake news menace. Even as late as April 14, the Supreme Court expressed concern over the proliferation of fake news and the communalisation of reportage and asked the Centre if it is “really serious” about fixing accountability on web portals and other media to check the menace. The court observed that communalisation of news gives the country a “bad name”.
Though the context was prevention of spread of Communal hatred, the argument applies to even the organized political attack on the Government in order to destabilize the democracy in the country. We cannot say what is stated against the Government is always free speech to be protected even if it is blatantly false where as any incorrect view expressed in favour of one religion or one political view opposed to the Government is an attempt to create communal hatred or an attack on Democracy.
There is a need to approach this menace with a neutral mindset and I hope the Mumbai High Court would ensure that its views will neither be politically motivated or TRP motivated.
I therefore consider that if any fake news is put out against the Government, the Government as an entity has the right to defend itself and common citizens like me consider this as a duty of the Government.
Hence the petition in the Mumbai High Court deserves to be dismissed and can be taken on a case to case basis when there is any specific instance of misuse of the provision.
What Exactly the Guideline Say?
Now re-iterating the guideline, it only suggests that practicing Due Diligence by an intermediary includes the duty namely
“the intermediary shall prominently publish on its website, mobile based application or both, as the case may be, the rules and regulations, privacy policy and user agreement in English or any language specified in the Eighth Schedule to the Constitution for access or usage of its computer resource by any person in the language of his choice and ensure compliance of the same;
And in such policy/terms of use, the intermediary shall inform that the intermediary shall make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that
deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature or is identified as fake or false by the fact check unit at the Press Information Bureau of the Ministry of Information and Broadcasting or other agency authorised by the Central Government for fact checking or, in respect of any business of the Central Government, by its department in which such business is transacted under the rules of business made under clause (3) of article 77 of the Constitution;
If this due diligence guidance is wrong, then the Court would be upholding that “Deceiving and misleading and misinformation of a patently false information” are part of the Free speech.
I would request the Court not to come up with such a finding.
The second part of the above paragraph which states “Or is identified as fake etc” is again a guidance for the intermediary to incorporate in its policy or terms to its users.
In other words, If I am writing an article on word press, the word press is an intermediary and in its terms it should tell me not to intentionally communicate any mis information including what has been identified as false by the Fact Check unit.
If tomorrow some body has a cause of action against me on account of the posting, then he/she could approach a Court. The Court at that time would not hold word press liable and grant it immunity under Section 79. However Court would expect cooperation from the intermediary on the identity of the content owner, whether the content was posted by the said person himself or whether it was posted by a hacker to fix the blog owner by producing log records etc. We can recall that this is a standard defence on Twitter to say “My Twitter Account was hacked and I dd not send that offensive Tweet”.
If the intermediary at that time does not cooperate in finding out the truth , it would be open to a different charge of not cooperating the Court or the law enforcement for a legitimate national security duty. The Intermediary could even be accused of facilitating the offence under Section 43(g) of ITA 2000 and charged for Civil and Criminal consequences.
If Telengana Today had published a report that Modi’s Promise has been broken because Telengana was excluded in a Central Government project and the Textile Ministry considers that this is not true, it is the right of Mr Modi as an individual, as Prime Minister of the Country or the Ministry of Textiles or Ministry of Information and Broadcasting to stand up and question the publication. If Telengana Today had published the news erroneously then they would place a rejoinder agreeing that the information was not correct and the matter ends there.
If however, this issue is blown up and used by some politicians politically to harm the BJP, then the BJP as a party has the right to file a case against Telangana Today for not taking action to limit the damage. However the obligation to take down does not arise even when a notice is served by BJP party to the publication but only when a Court issues such an order.
I want the INS to comment why this sort of regulation is not to be imposed on the media. Just because a publication calls itself a “News Paper” , it does not give it a right of dis-information without being questioned in the Court. Since the final arbitrator is the Judicial system the Intermdiary Guidline is a small “Best Practice Guideline” and nothing more.
To make matters more clear to the professionals, let us say that ISO comes up with an amendment to its ISO 27001 standard (more particularly say on the disclosure of information from a Company regarding Privacy Notice) and introduces a new requirement. The industry cannot cry wolf and say since there are hundreds of companies already certified under ISO 27001, the guideline would cause a “Chilling Effect” on the way ISO has changed the standard etc.
It is the duty of the Government to keep on improving its suggested standards of due diligence and everything cannot be called “Chilling Effect”. If we are living in the antarctic, “Zero degree temperature” is not “Chilling”. How ever if you are living in Bangalore, even 6 degree temperature is “Chilling”.
Similarly in a world of fake news, particularly when AI created robotic publishing, deep fake etc is the norm of the day, calling out some thing as fake is not “Chilling”. It is the duty of the Government to provide such cover of truth just like we have an anti virus software to remove virus in the computer system.
Further, the guidleline only talks about a Government department issuing a Fact Check report in respect of “any business of the Central Government, by its department in which such business is transacted under the rules of business made“.
As regards information that appears elsewhere in the social media, it is open for private sector fact checking units to remain in existence and persons like Zubair of Alt News can continue their work but subject to being open for Judicial scrutiny.
Ireland Media shows the way
While on the subject, I also found the existence of “The Journal FactCheck Unit” . This is located within the news room of one of Ireleands news resources, The Journal and was established in 2016. This unit has also developed a process for not only calling out a false report but also how it can be remedied. This is similar to what Naavi had suggested way back in 2000. (Check this Article).
One of the corrections posted on the Journal FactCheck page indicates how this kind of service can function.
In my opinion, media should welcome the move of the Government to point out falsehood spread through planted stories. This will provide a crowd sourced and Government managed news verification service that would assist the publication to maintain its integrity.
I hope the Mumbai High Court sees it in the same way.
We draw the attention of the public and hopefully that of the Mumbai High Court that the petition lacked merit even to be accepted if there is a prima facie evaluation of the rules.
I suppose the following articles explain why I consider that the fear expressed by a section of the press is imaginary and speculative.
